ACTION CONGRESS OF NIGERIA VS SULE LAMIDO & ORS.

CORAM

WILLIAMS JUSTICE, SUPREME COURT

FATAYI WILLIAMS, AG, JUSTICE, SUPREME COURT

MOHAMMED    JUSTICE, SUPREME COURT

CHUKWUMA-ENEH    JUSTICE, SUPREME COURT

WILLIAMS JUSTICE, SUPREME COURT

PARTIES

ACTION CONGRESS OF NIGERIA APPELLANTS

SULE LAMIDO & ORS.

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The Appellant as Petitioner challenged the return of the 1st Respondent as the Governor of Jigawa State in the election conducted by the 3rd Respondent on 26th April, 2011. The Petitioner/Appellant contended that at the time of the election, the 1st Respondent was not qualified to contest the Governorship Election conducted by the Independent National Electoral Commission on 26th April, 2011 in Jigawa State because he presented to the Independent National Electoral Commission a forged West African Examination Council Certificate No. C3005655 and that he did not attend the then Government College Zaria now Barewa College beyond Form 3 and as such did not possess the requisite qualification required by the 1999 Constitution to contest the election.

It was also the case of the Petitioner/Appellant that the election was invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act, 2010 and Independent National Electoral Commission Manual for Electoral Officers. The corrupt practice, complained of by the Appellant in the election, include multiple thumb printing and vote rigging in that the 3rd, 4th and 5th Respondents wrongfully computed majority of lawful votes counted as cast for the 1st Respondent even though the said figures were altered and inflated and were products of artificial polling units. The tribunal at the end of the trial dismissed the petition. Not satisfied with the decision of the tribunal, the Appellant appealed against same to the Court of Appeal which also dismissed the appeal and affirmed the decision of the tribunal. Aggrieved by the decision of the Court of Appeal, the Appellant has further appealed to this court.?

HELD

Appeal Dismissed

ISSUES

1.Whether by the action of closing its case on 1st September, 2011, the trial Tribunal denied the Appellant its Constitutional right of fair hearing under Section 36(1) of the 1999 Constitution.?

2.Whether the Court of Appeal was right when it upheld the lower trial Tribunal decision refusing to grant the Appellant’s application to summon the INEC Commissioner or his representative to tender ballot papers used in the election and held that, that did not lead to denial of fair hearing.?

3.Whether the Court of Appeal was not wrong in its conclusion that the rejection of all the ballot papers sought to be tendered was not wrong when they found as a fact that the Appellant has sufficiently satisfied the second limb of the provision of paragraph 4(5)(c.) of the 1st Schedule with the listing of five Local Government Areas of Birnin Kudu, Gwaram, Ringim, Taura and Gwiwa in the Appellant’s petition.?

3.Whether the approach adopted by the Court of Appeal leading to the conclusion that the production of the Exhibit “B” alone in evidence had shifted the burden of proving that the 1st Respondent was not educated up to at least School Certificate from the 1st Respondent was not educated up to at least School Certificate from the 1st Respondent did not occasion miscarriage of justice.?

4.whether having found that Exhibit ‘B’ is a public document which is inadmissible under Section 111 of the Evidence Act, the Court of Appeal could justify reliance on the Exhibit by following the decision in Onobruchere v. Esegine (1986) 1 N.W.L.R. (Pt. 19) 799 at 808, to find in favour of the 1st Respondent’s qualification to contest the election into the office of the Governor of Jigawa State?

5.Whether the Court of Appeal was not wrong in its assessment and evaluation of Exhibit ‘D’ vis-à-vis the evidence of PW4 as a result of which it misapplied the evidence to the case of the Appellant regarding the qualification of the 1st Respondent to contest the Governorship election of Jigawa State.?

6.Whether the Court of Appeal was not wrong when it held that the lower Tribunal did not misdirect itself when it failed to examine Exhibits ‘E’ – ‘Z’ and Exhibits 1 – 36 as enjoined by the law?

7.Whether the Court of Appeal was not wrong in its assessment and evaluation of evidence of DW1 and DW2 and the weight the trial Tribunal attached to their evidence even as tainted witnesses.?

8.Whether the Court of Appeal was right when it held that the averments contained in paragraphs 18 and 19 of the Appellant’s petition filed at the tribunal were not specific but nebulous. ?

RATIONES DECIDENDI

FRONT LOADING – PURPOSE OF FRONT LOADING

“The basic aim of tendering documents in bulk was to ensure speedy trial and hearing of election petition.”PER J. A. FABIYI, JSC

PROBATIVE VALUE OF EVIDENCE – PROBATIVE VALUE DEPENDS NOT ONLY ON RELEVANCE BUT ALSO ON PROOF

“While admissibility is based on relevance, probative value depends not only on relevance but also on proof. Evidence has probative value if it tends to prove an issue”. PER J. A. FABIYI, JSC

PROOF OF ALLEGATION OF FORGERY – AN ALLEGATION OF FORGERY MUST BE PROVED BEYOND REASONABLE DOUBT

“The allegation of forgery being a criminal offence must be proved beyond reasonable doubt.” PER MAHMUD MOHAMMED, JSC

CONCURRENT FINDING OF FACTS – ATTITUDE OF THE SUPREME COURT TOWARDS THE CONCURRENT FINDING OF FACTS BY LOWER COURTS

“It is long settled that concurrent findings of fact would rarely be disturbed by this court, but this court would be compelled to interfere if the findings are perverse, or cannot be supported by the evidence before the court or there is/was a miscarriage of justice or violation of some principle of law or procedure. See Cameroon Airlines v. Otutuizu 2011 1-2 SC pt.111 p.200. “PER B. RHODES- VIVOUR, JSC

PRINCIPLE OF NATURAL JUSTICE – FAIR HEARING IS DERIVED FROM THE PRINCIPLE OF NATURAL JUSTICE

“Fair hearing is derived from the principle of natural justice. Its twin pillars are audi alteram partem and nemo judex in causa sua. It is of general application in Nigerian courts and courts are expected at all times to adjudicate in accordance with the rules of natural justice. That is to say a judge should allow both parties to be heard and he should listen to the point of view or the case of each side before delivering a judgment. This practice is well rooted in all civilized societies and has its roots in the Old Testament in the Bible. The Lord had overwhelming evidence that Adam had eaten the forbidden fruit, the apple, which the Lord told him never to eat, but still gave Adam an oral hearing before judgment was passed.” PER B. RHODES- VIVOUR, JSC

FAIR HEARING – TEST FOR DETERMINING FAIR HEARING

“It has been long settled that the test whether a party in a case was given a fair hearing is the impression of a reasonable person who was present at the trial or who was aware of the proceedings.”PER B. RHODES- VIVOUR, JSC

FAIR HEARING – SECTION 36 (1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999

Section 36(1) of the Constitution reads:
“36(1) In the determination of his civil rights and obligation, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.” PER B. RHODES- VIVOUR, JSC

ELECTION PETITION-TIME FRAME WITHIN WHICH A PETITIONER SHOULD PROVE ITS CASE

Paragraph 41(10) of the first schedule to the Electoral Act 2010 reads:
“The petitioner in proving his case shall have not more than 14 days to do so and each of the respondents shall have no more than 10 days to present its defence.” PER B. RHODES- VIVOUR, JSC

DUTY OF A JUDGE – A COURT OR TRIBUNAL SHOULD NOT MAKE ENQUIRY INTO A CASE OUTSIDE AN OPEN COURT

“It is not the duty of a court or Tribunal to embark upon cloistered justice by making enquiry into the case outside the open court not even by examination of documents which were in evidence but not examined in the open court. A judge is an adjudicator; not an investigator. See: Duriminiya v. Commissioner of Police (1961) NRNLR 70; Queen v. Wilcox (1961) 1 SCNLR 296; (1961) All NLR 633; Dennis Ivienagbor v. Henry Osato Bazuaye (1999) 6 SCNJ 235 at 243; Onibudo v. Akibii (1982) 7 SC 60.” PER J. A. FABIYI, JSC

CASES CITED

Buhari v. I.N.E.C (2008) 19 NWLR (Pt. 1120) 246 at 414.Onibudo v. Akibu (1982) 7 SC 60.Salu v. Egibon (1994) 6 NWLR Pt.348 p.34Cameroon Airlines v. Otutuizu 2011 1-2 SC pt. 111 p. 200?

STATUTES REFERRED TO

1.Constitution of the Federal Republic of Nigeria, 1999

2.Electoral Act 2010

3.Evidence Act

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