CORAM

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DENNIS ONYEJIFE EDOZIE

MUHAMMAD SAIFULLAHI MUNT AKA-COOMASSIE, JUSTICE, COURT OF APPEAL

DAHIRU MUSDAPHER JUSTICE, COURT OF APPEAL

ISAIAH OLUFEMI AKEJU

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PARTIES

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JOSEPH NANVEN GARBA

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SILAS JANFA & 72 ORS.

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellant Joseph Nanven Garba and the 1st Respondent Silas Janfa were respectively candidates for All Peoples Party (APP) and Peoples Democratic Party (PDP) in the election for the Senator representing Plateau South Senatorial District in the National Assembly which election was conducted on 20th day of February, 1999 by the 2nd to 72nd Respondents. The results of the election showed that the 1st Respondent polled 92,970 votes, the Appellant polled 74,971 votes while the Alliance for Democracy (AD) which fielded no candidate had 1,052 votes recorded in its favour. The 1st Respondent having won majority of the votes cast in the said election was duly returned as elected by the Independent National Electoral Commission (INEC) the 4th Respondent. Aggrieved by the turn of events, the Appellant as Petitioner filed before the National Assembly Election Tribunal sitting in Jos, a petition challenging the result of the election.
-In opposition to the petition, the 1st Respondent on the one hand and the 2nd to 72nd Respondents on the other filed their replies in answer to the petition. In the course of the trial that ensued during which several relevant documents were tendered and admitted in evidence by consent, the Appellant testified as PW 1 after which he called two other witnesses PW2 and PW3. Thereafter the 1st Respondent elected not to give oral evidence but relied on his voters card Exhibit 40. The 2nd to 72nd Respondents called two witnesses D.W.1 and D.W.2 to testify on their behalf. After final addresses of counsel for all the parties, the five – member Tribunal in a unanimous decision dismissed the petition. It is against that decision that the Appellant by a Notice of Appeal has lodged the instant appeal.

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HELD

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Appeal Dismissed.

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ISSUES

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Whether the person who was registered as “SILAS JANGFA” is one and the same person as the 1st Respondent who contested the election sub-nom “SILAS JANFA”?

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RATIONES DECIDENDI

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FINDINGS OF A TRIAL COURT – INSTANCES WHEN AN APPELLATE COURT WOULD INTERFERE WITH THE FINDINGS MADE BY A TRIAL COURT OR TRIBUNAL

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“It is settled law that the ascription of probative value to the evidence of witnesses is pre-eminently that of the trial court. An appellate court will not lightly interfere with the findings made by a trial court or Tribunal as it is not the business of the Appeal Court to substitute its own view of the facts for those of the Judge or Tribunal who saw and heard the witnesses. See Ayua V. Adasu (1992) 3 NWLR (PT. 231) 598 AT 609. In appropriate cases, however, as when the finding is perverse an appellate court can interfere. Woluchem V. Gudi (1981) 5 S.C. 291 at 326; Chinwendu V. Mbamali (1980) 3-4 S.C. 31; Igwego V. Ezeugo (1992) 6 NWLR (PT.249) 561 at 585″.

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PERVERSE FINDINGS OF COURT – WHEN IS A FINDING BY A TRIAL COURT SAID TO BE PERVERSE?

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“A finding is said to be perverse when it is not only against the weight of evidence but is altogether against the evidence; NEPA V. Alli (1992) 8 NWLR (PT.259) 279 at 303″.

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BURDEN OF PROOF – WHETHER THE FAILURE OR REFUSAL OF A DEFENDANT TO PROVE OR TESTIFY CAN ALLEVIATE THE PRIMARY BURDEN OF PROOF ON THE PLAINTIFF TO PROVE HIS CASE

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“Failure of a defendant to prove or even his refusal to testify cannot alleviate the primary burden on the plaintiff to prove his case: See Umeojiako V. Ezenamuo (1990) 1 N.W.L.R. (PT. 126) 253 at 267. This is in accord with the principle of law restated in Okoronkwo V. Chukweke (1991) 1 NWLR (PT. 216) 175 AT 192 where the Court held:
‘It is a recognised practice and procedure at law for a party to call witnesses to give evidence in support of his case even where he himself did not give any evidence for there is no law or rule of court which requires a party to a civil suit to personally give evidence in support of his case. On the contrary, parties need not appear if they are properly represented or give evidence at the trial so long as the available evidence is sufficient to prove or sustain their case’”.

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ELECTION – WHETHER CORRECT SPELLING OF THE NAME OF A PERSON WHO REGISTERED AND CONTESTED AN ELECTION WOULD BE SIGNIFICANT WHERE HIS IDENTITY HAS BEEN ASCERTAINED

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“But, of paramount importance is the identity or the person who was registered and contested the election. Once that is ascertained the issue of correct spelling pales into insignificance”.

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FRESH ISSUE ON APPEAL – PREREQUISITE FOR RAISING A FRESH ISSUE ON APPEAL

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“Lastly, learned counsel adopted an etymological approach when he sought to explain that there is a difference in meaning between “Jangfa” and “Janfa” in Tarok Language. In this connection, reference was made to the book “Keeping Tarok Language Alive” by Adamu Labut Mainfe and the Tarok Dictionary by Langtan and Blench. My short answer to this is that issues had not been joined in the pleadings on the matter. It constitutes a fresh issue which can only be raised with the leave of this court under special circumstances. See Ikawa V. Dandy (1993) 8 N.W.L.R. (PT.310) 246 at 254; Gambo V. Turdam (1993) 6 N.W.L.R. (PT. 300) 500 AT 507″.

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EVIDENCE – EVIDENTIAL VALUE OF BOOKS IN TRIAL PROCEEDINGS

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“In the case of Idundun V. Okumagba (1976) 1 N.M.L.R 200 at 210, the Supreme Court while considering the weight attached to books cited in the case commented that no evidence was adduced to show that any of the books is generally acknowledged either in Nigeria or elsewhere as a standard work so as to enable the court to resort, with justification to their aid. Moreover, none of the authors of the books testified in support of the views stated therein and no explanation was given for the omission. It was therefore held that the books were of doubtful evidential value”.

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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National Assembly (Basic Constitutional and Transitional Provisions) Decree 1999 No.5 of 1999.|

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