Legalpedia Citation: (2023-13) Legalpedia 17920 (CA)

In the Court of Appeal

Holden At Yola

Fri Dec 22, 2023

Suit Number: CA/YL/EP/AD/SHA/20/2023

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. KEFAS JAPHET
2. PEOPLES DEMOCRATIC PARTY (PDP)

APPELLANTS

1. UMAR RUFA’I
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS

AREA(S) OF LAW

APPEAL, ELECTION PETITION, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The 1st Respondent was the candidate of the 2nd Respondent in the election conducted by the 3rd Respondent on the 18th March and 15th April, 2023 for member representing Gombi State Constituency in the Adamawa State House of Assembly. The 1st Appellant was the candidate of the 2nd Appellant and contested the said election along with other candidates and their respective political parties.

At the conclusion of the election, the 3rd Respondent declared the 1st Appellant winner of the election having scored 19,884 votes to the 1st Respondent’s 19,469 votes to come second. Based on the scores, the 3rd Respondent returned the 1st Appellant as elected member representing Gombi State Constituency in the Adamawa State House of Assembly.

The 1st and 2nd Respondents challenged the declaration and return of the Appellants as winners of the election in this petition on the grounds that the election and return of the 1st Respondent was invalid by reasons of non-compliance with the provisions of the Electoral Act, 2022 and that the 1st Respondent was not duly elected by the majority of the lawful votes cast at the election concluded on the 15th day of April, 2023.

On the merit, the learned Judges found and held that the petition has succeeded. Dissatisfied by the decision, the Appellant filed the instant appeal before this court.

 

HELD

Appeal dismissed

ISSUES

1. Whether the learned trial Judges were right in overruling the 1st and 2nd legs of the preliminary objection of the Appellants before them and amending the name of the 2nd Respondent herein in the absence of an application to amend the petition and also held that the 1st and 2nd Respondents herein provided the names of political parties interested in the petition as required by law?
2. Whether the Tribunal was right in finding that the 1st and 2nd Respondents’ petition contained a reasonable cause of action when they failed to plead and prove the number of permanent voters’ cards (PVCs) collected in polling units that they complained about in their petition?
3. Whether the trial Tribunal was right in refusing to follow the decision of this Honorable Court in HASHIDU VS. GOJE (2003) 15 NWLR (PT. 843) 352 which is on all fours with this case and admitting and relying on election result forms EC8A(i), EC8B(i), EC8C(i) and EC8E(i) tendered by the 1st and 2nd Respondents who pleaded forms EC8A, EC8B, EC8C and EC8E in their petition?
4. Whether the trial Tribunal was right in cancelling the results of the election in 16 polling units and deducting the scores of the candidates from those units to nullify the election of the 1st Appellant and declare the 1st Respondent herein as elected and granting other reliefs?

 

RATIONES DECIDENDI

DOCUMENTARY EVIDENCE – THE THREE PILLARS OF ADMISSIBILITY OF DOCUMENTARY EVIDENCE

There is no doubt that the three pillars of admissibility of documentary evidence are whether the document or facts of it are pleaded, whether it is relevant to the fact in issue and whether it is admissible evidence. Once the document is pleaded or facts of its existence are pleaded, it will be admissible evidence see OMEGA BANK (NIG). LTD VS. O. B. C. LTD (2005) LPELR-2636 (SC) and OCHIGBO VS. AMEH (2023) LPELR-59616 (CA). – Per B. B. Aliyu, JCA

INEC DOCUMENTS – DUTY OF A COURT OR TRIBUNAL TO TAKE JUDICIAL NOTICE OF INEC DOCUMENTS

It is no gainsaying that Forms EC8A, EC8A (1), EC8B (1) and EC8E (1) are all INEC documents. This Court takes judicial Notice of that fact. More so, election documents are public documents…. A Tribunal is duty bound to admit evidence where it is relevant to the case in question.  – Per B. B. Aliyu, JCA

SIGNING OR NON-SIGNING – WHETHER SIGNING OR NON-SIGNING OF AGENTS OF POLITICAL PARTIES CAN BE A WAIVER OF NON-COMPLIANCE WITH THE CLEAR PROVISIONS OF THE ELECTORAL ACT

I therefore agree with the finding of the Tribunal that signing or non-signing of agents of political party cannot be a waiver of non-compliance with the clear provisions of the Electoral Act. This is particularly so when the Tribunal found the non-compliance of non-signing and non-stamping as well as overvoting were manifest on the faces of the election results themselves.  – Per B. B. Aliyu, JCA

COURTS – CONDUCT OF THE COURT OF APPEAL REGARDING EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE TO SAME

The duty of evaluation and ascription of probative value to evidence led is primary that of the trial Tribunal and it has effectively carried out that duty as shown on the record. We cannot justifiably re-evaluate the evidence as the Appellants did in their brief of argument. – Per B. B. Aliyu, JCA

EVIDENCE – WHERE THE DUTY OF EVALUATION AND ASCRIPTION OF PROBATIVE VALUE TO EVIDENCE LIES – DUTY OF AN APPELLANT CHALLENGING THE EVALUATION OF EVIDENCE BY THE TRIAL COURT

It is a settled principle that evaluation and ascription of probative value to evidence is the primary duty of the trial Court which hears the testimonies of witnesses, observes their demeanour and assesses their credibility. Unless the evaluation of evidence made by a trial Court is established to be improper or perverse occasioning miscarriage of justice, an appellate Court cannot interfere. See: NAGOGO v CPC & ORS (2012) LPELR-15521(SC) at 35-37, paras. D-A: and CPC v INEC (2011) LPELR-8257(SC) at 46 – 47, paras. F – E.

Thus, an Appellant who challenges the evaluation of evidence by the trial has the duty to establish that the evaluation and/or finding of the Tribunal was improper and/or and that same has occasioned miscarriage of justice: KIWO v. STATE (2020) LPELR-53900(SC) at 30, para. D: and AMADI v. A.G. IMO STATE (2017) LPELR-42013(SC) at page 12, para. B. – Per A. B. Mohammed, JCA

CASES CITED

STATUTES REFERRED TO

1. Electoral Act, 2022
2. Election Judicial Proceedings Practice Directions, 2023
3. INEC Regulations and Guidelines for Conduct of Election, 2022

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