Legalpedia Citation: (2015-12) Legalpedia 19444 (CA)

In the Court of Appeal

Holden at Yola

Tue Dec 22, 2015

Suit Number: CA/YL/EPT/TRS/SHA/119/2015

CORAM

JUMMAI HANNATU SANKEY JUSTICE, COURT OF APPEAL

UCHECHUKWU ONYEMENAM JUSTICE, COURT OF APPEAL

SAIDU TANKO HUSAINI JUSTICE, COURT OF APPEAL

PARTIES

JOSIAH JOHN AJI

 

APPELLANTS

1. TANIMU MOH’D DANLELE
2. PEOPLES DEMOCRATIC MOVEMENT (PDM)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. PEOPLES DEMOCRATIC PARTY (PDP)

 

RESPONDENTS

AREA(S) OF LAW

LAW OF EVIDENCE, ELECTORAL LAW, CONSTITUTIONAL LAW, LAW OF JURISPRUDENCE, JUDICIAL INTERPRETATION OF STATUTES, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

This is an appeal against the judgment of the National and State Houses of Assembly Election Tribunal sitting in Jalingo, Taraba State. The Appellant (Josiah John Aji) was the candidate of the 4th Respondent (Peoples Democratic Party) at the said election. The 1st Respondent, (Tanimu Moh’d Danlele) was sponsored by the 2nd Respondent, (Peoples Democratic Movement) as her candidate for election into the office of the Taraba State House of Assembly, Wukari II Constituency, conducted by the 3rd Respondent (INEC).

At the conclusion of the election, the Appellant was declared the winner of the election and was consequently returned.  Aggrieved by the declaration and return of the Appellants, the 1st and 2nd Respondents, filed a Petition before the National and State Houses of Assembly Election Tribunal sitting in Jalingo, Taraba State. The Tribunal nullified the election of the Appellant into the Taraba State House of Assembly Wukari II Constituency and ordered the 3rd Respondent to conduct a fresh election within 90 days. The Appellant being aggrieved with the judgment of the Tribunal appealed to this Court on the grounds set out in the Notice of Appeal.

HELD

Appeal allowed.

ISSUES

1. WHETHER the learned Judges of the tribunal were right in law to have used and/or relied on Exhibit 152 to hold that the allegations of non-accreditation and over-voting had been established, even when they had earlier on held that the 1st and 2nd Respondents had failed to prove the Petition.  (This issue is distilled from Grounds 2, 10, 12, 13 and 15 of the grounds of Appeal?
2. WHETHER the learned Judges of the Tribunal were not in error to have nullified the election and return of the Appellant as the duly elected member of the Taraba State House of Assembly for Wukari II Constituency, regard being had to the facts and grounds pleaded in the Petition as well as the nature of the evidence led at trial by the 1st and 2nd Respondents.  (This issue is distilled from Grounds 1, 4 and 14 of the Grounds of Appeal)?
3. WHETHER the order by the learned Judges of the tribunal compelling the Appellant to make an oral address as his final address in the petition barely two hours after the close of the case of the 4th Respondent, is not in violation of his right to Fair hearing and the mandatory provisions of the law.  (This is issue is distilled from Ground 7 of the Grounds of Appeal)?
4. WHETHER the learned Judges of the tribunal were in error when they held that Over Voting is a specie of non-compliance and failed to evaluate the evidence of the Appellant and whether the tribunal’s Jurisdiction was rightly exercised when they ordered a recertification of Exhibits already admitted in evidence when the appellant had objected to the admissibility of the documents.  (This issue is distilled from ground 3, 5, 6, 8 and 9 of the Grounds of Appeal)?

RATIONES DECIDENDI

LEADING EVIDENCE – THE POSITION OF THE LAW ON A PLAINTIFF LEADING EVIDENCE THROUGH HIS WITNESS

A Plaintiff is entitled to lead evidence through his own witnesses or by cross examination of Defendant’s witnesses to controvert a fact pleaded by the defence.  See: Gaji V. Paye (2003) LPELR 1300 (SC) pages 17 – 18.  See also: Bamgboye V. Olanrewaju (1991) 4 NWLR (Pt. 184) 132 @ 155 where the SC, per Karibi – Whyte JSC, (as he then was) made the following observation:

“It seems to me consistent with principle that evidence led during cross examination on issues joined is not inadmissible merely because such evidence is not supported by the pleading of the party eliciting the evidence.  For instance, in the instant case, although the defendants did not plead the fact that all the Sections of the Okeson family had a common ancestor, the reference to the fact that they were all of the same family by paragraph 6 of the statement of claim was sufficient for the admission of any evidence establishing or negating that fact.  And this is so whether on cross-examination.”

PER –  UCHECHUKWU ONYEMENEM JCA.

LEADING EVIDENCE – PURPOSE OF LEADING EVIDENCE

The purpose of leading evidence in a case is for a party to establish fact pleaded by him, that is to establish his case; and to debunk or controvert any fact pleaded by the opposing party.  The evidence led can be through his own witnesses or by cross-examination of defendant’s witnesses.  Howbeit, where Plaintiff leads evidence in support of defendants pleading, the evidence is admissible.  This is the rule of pleading.  See: Sketch Newspapers V. Ajagbemokeferi (1989) 1 NWLR (Pt. 100) 678; Bamgboye V. Olanrewaju (1991) 4 NWLR (Pt. 184) 132; Buhari V. Obasanjo (2005) 13 NWLR (pt. 94) 1. PER –  UCHECHUKWU ONYEMENEM JCA.

EVIDENCE – THE POSITION OF THE LAW ON EVIDENCE PROCURED FROM CROSS-EXAMINATION ON ISSUES JOINED BY PARTIES

Evidence procured from cross-examination on issues joined by parties is good enough evidence as evidence in chief.  Therefore, evidence elicited under cross examination stands on the same pedestal in potency as evidence in chief.  See: OKorocha V. INEC (2010) LPELR – 4718 (CA). PER –  UCHECHUKWU ONYEMENEM JCA.

DOCUMENTARY EVIDENCE – THE POSITION OF THE LAW ON THE ADMISSIBILITY OF DOCUMENTARY EVIDENCE AND THE WEIGHT TO BE ATTACHED TO IT

It is trite law that the admissibility of documentary evidence is different from the weight to be attached to it.  This is to say that in law, the admissibility of documentary evidence is one thing and the probative value that may be placed thereon another.  Relevance and admissibility of document are separate matter in contradiction from the weight to be attached to it.  See: Dalek Nigeria Limited V. Oil Mineral Producing Areas Development Commission (OMPADEC) (2007) LPELR – 916 (SC); 2007) 7 NWLR (Pt. 1033) 402. PER –  UCHECHUKWU ONYEMENEM JCA.

EVIDENCE – WHETHER OR NOT THE EVIDENCE OF A WITNESS WILL BE ADMISSIBLE WHERE SUCH EVIDENCE IS NOT SUPPORTED BY THE PLEADING OF THE PARTY

I do appreciate this difference but the principle of law laid down in: Gaji V. Paye (supra) following the Supreme Court decision in: Bamgboye V. Olanrewaju (1991) 4 NWLR (pt. 184) 132 in my view applies to this case.  The said principle laid down by the apex Court in: Bamgboye’s case is that;

“Evidence led during cross-examination on issues joined is not inadmissible, merely because such evidence is not supported by the pleading of the party eliciting the evidence”.

Yes, it is correct that the evidence led by the 1st and 2nd Respondents during cross examination of the Appellant’s witnesses does not support their pleading but nonetheless, the evidence is admissible under the principle enunciated in: Bamgboye V. Olanrewaju (supra) followed by Gaji V. Paye.  It is therefore not correct that the case of Gaji V. Paye is inapplicable.  I hold that the case of: Gaji V. Paye is applicable and that the evidence led by the 1st and 2nd Respondents during cross examination of the Appellant’s witness (DW6) on Exhibit 152 (Card Reader Report) is admissible and was rightly admitted by the Tribunal. PER –  UCHECHUKWU ONYEMENEM JCA.

ELECTRONICAL ACCREDITATION – WHETHER OR NOT ACCREDITATION CAN BE PROVED WITHOUT FULL EXAMINATION OF CARD READER, VOTERS REGISTER AND INCIDENT FORM

In our current electoral jurisprudence, accreditation is done Electronically with Smart Card Reader and manually by the ticking of the voters’ register.  Where a Permanent Voters Card (PVC) cannot be read by the Card Reader, an Incident Form is used to back up where there is no ticking.  Therefore, accreditation cannot be proved without the full consideration and examination of a Card Reader, Voters Register and Incident Form. PER –  UCHECHUKWU ONYEMENEM JCA.

CHALLENGE OF AN ELECTION – WHETHER OR NOT A PETITIONER CAN HOLD THE ABSENCE OR IMPROPER USE OF SMART CARD READERS AS A GROUND TO CHALLENGE AN ELECTION

Section138 (2) of the Electoral Act, 2010 (as amended) states:

“An act or omission which may be contrary to an instruction of directive of the Commission as of an Officers appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election”

This Court has stood on this section 138 (2) of the Electoral Act (Supra) to hold that a Petitioner cannot make the absence or improper use of Smart Card Reader as a ground to challenge election.  See: APC V. Agbaje (Supra).

Let me state clearly that, it is without any shadow of doubt that under the present electoral jurisprudence of Nigeria, Smart Card Readers which were introduced into the 2015 general elections pursuant to the Electoral Guidelines and or directive of the 3rd Respondent, and which does not qualify under the Electoral Act as a ground to challenge an election, cannot be the basis to nullify an election conducted pursuant   to the Electoral Act.  It does follow therefore that Exhibit 152 which is a Card Reader Report which cannot be a ground to question an election cannot solely be relied upon to nullify an Election. PER –  UCHECHUKWU ONYEMENEM JCA.

ELECTION MATTERS – THE NATURE OF ELECTION MATTERS

It is now a chorus which I must sing here again, that election matters are sui generis and as such must be conducted strictly in compliance with the laws and rules guiding them.  See: PDP V. INEC (2014) 7 NWLR (pt. 1437) 525. PER –  UCHECHUKWU ONYEMENEM JCA.

INTERPRETATION – JUDICIAL INTERPRETATION OF THE WORD SHALL AS USED IN PARAGRAPH 46 OF THE FIRST SCHEDULE TO THE ELECTORAL ACT 2010

It is correct as argued by the Appellant that the word “shall” in paragraph 46 of the First Schedule to the Electoral Act, 2010 is mandatory.  This is to say, that parties are mandatorily required to make final written addresses after close of their cases.  The parties also by paragraph 46 of the Act (supra), are given number of days which cannot be extended for the filling of the said addresses.  These rules as stated in: Okorocha V. PDP & Ors (2014) vol. 229 LRCN 70; are to be obeyed for the purpose of protecting the sanctity and dignity of the law and the rules of Court. PER –  UCHECHUKWU ONYEMENEM JCA.

CONSTITUTION – WHETHER OR NOT AN ADJUDICATING BODY MUST FOLLOW THE COMMAND OF THE CONSTITUTION AS OPPOSED TO ANY OTHER LAW OR RULE

When a Court or Tribunal is faced with the choice of obeying the rules of Court and the provisions of the Constitution; without the blink of an eyelid such adjudicating body must follow the command of the Constitution as opposed to any other law or rule.  This at anytime will be the justice of the case and no infringement of the right to fair hearing of a party shall arise in view of the fact that any such seeming breach or apparent breach is in a bid to comply with the provisions of the Constitution in the circumstances of the case.

Further, on the Rules of Court in the case of: Dingyadi V. INEC (2010) LPELR 952 (SC) 176; the Supreme held thus:

“I must remark that rules of Court are made for attaining justice with ease, certainty and dispatch. They are made for the purpose of obtaining justice by parties in the citadel of justice.  They must not be used in the instance of this case as a clog in the wheel of obtaining such justice.

The Courts have power to waive compliance with the rules in exceptional circumstances when it considers that the interest of justice is of paramount importance.  Nowadays, this Court has moved away from technical justice to doing substantial Justice…………..”.

PER –  UCHECHUKWU ONYEMENEM JCA.

CASES CITED

STATUTES REFERRED TO

1.Electoral Act 2010

2.Manual for Election Officials, 2015

 

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