ALHAJI (DR) ALIYU AKWE DOMA &ANOR VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS

CORAM

OLABODE RH0DE5-VIVOUR   JUSTICE, SUPREME COURT

PARTIES

ALHAJI (DR) ALIYU AKWE DOMAPEOPLES DEMOCRATIC PARTY (PDP) APPELLANTS

 INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

On 26th April, 2011, the 1st Respondent, Independent National Electoral Commission (INEC) conducted election into the office of Governor of Nasarawa State.  After the completion of the election the 4th Respondent by name Umar Tanko Al-Makura who was the candidate of Congress for Progressive Change (CPC) was declared as winner and returned as duly elected. The 1st Appellant who contested on the platform of the 2nd Appellant – Peoples Democratic Party was not happy with the outcome of the election, and subsequently filed a petition along with his party before the trial Tribunal in Lafia, Nasarawa State on 17th May, 2011 against the Respondents claiming that the election was conducted peacefully, freely and fairly in the nine (9) Polling Units of Laminga Electoral Ward and Oshugu Polling Unit of Loko Electoral Ward of Nasarawa Local Government Area and in Anna Town Polling Unit of Alagye Ward of Doma Local Government Area during the stated election but that the 1st, 2nd and 3rd Respondents unjustly excluded and/or refused to include the results and discountenanced the results from the above stated units and wards. Another ground of note for the petition relates to multiple thumb printing, ballot stuffing, over voting and inflation of results leading to non-compliance with the provisions of the Electoral Act, 2010 (as amended).

The Respondents maintained that the exclusion of results in the stated polling units and wards was justified in that results of election in the affected polling units and wards were cancelled because thugs threatened violence on the respective presiding officers and other electoral officials during the election, the 4th Respondent also objected to some votes credited to the Appellants by the 1st, 2nd and 3rd Respondents in three Local Government Areas of Doma, Kokona and Obi in Nasarawa State, but the trial tribunal overruled the preliminary objection of the 4th Respondent and dismissed the petition. The Appellants appealed to the Court of Appeal against the dismissal of their petition. The 4th Respondent cross-appealed against the part of the decision which overruled his objection to votes credited to the Appellants in the named local governments.  The lower court dismissed the Appellant’s appeal and allowed in part the 4th Respondent’s cross-appeal. He has further appealed to this court.

HELD

Appeal dismissed?

ISSUES

1.Whether on a proper consideration of ground 8 of the appellants’ Ground of Appeal (in the Notice of Appeal to the Court of Appeal) and the dismissal of the 4th respondent’s preliminary objection against the appeal on the ground that the same was unfounded, the lower court was right in its decision striking out that ground?

2. Whether having regard to the different issues raised by the appellant’s appeal in the lower court relating to various errors of law committed by the Tribunal, the lower court properly reduced the issues to a matter of proof and standard of proof thereby leaving other issues unconsidered and unresolved and whether in all the circumstances of the appeal, it can be said that the lower court did justice to the appeal of the appellants ?

3.Whether the lower court was right when it held that P.W.14 and P.W. 44 were justifiably discredited by the Tribunal without showing what evidence they relied on for that holding Whether having regard to the materials on record including, inter alia, the pleadings, the evidence, the issues raised in the appeal at the lower court, the submissions of the parties and relevant law, it can be said that the lower court gave proper consideration to the evidence of P.W.40 and the other witnesses called by the appellants?

4.Whether the lower court has not denied the appellants/cross-respondents fair hearing by deciding the cross-appeal without any consideration of the appellants/cross-respondents’ brief against same and whether in the circumstances the decision of the lower court can be allowed to stand Whether having regard to the pleadings of the parties, the evidence   on   record   and the submissions on the issues raised in the appeal before the lower court, the court below is right in overruling the Tribunal on the results of Oshugu and Anna Town Polling Units?

5.Whether the lower court was right in resolving issue 3 of the cross appeal against the appellants on grounds not covered by cross-appeal and not canvassed by the parties Whether in view of the pleadings of the cross-appellants (sic) on the votes objected to in Doma, Kokona and Obi Local Government Areas treated by the lower court as ground 5, which raised criminal allegations, the pleadings of the cross-respondents on same, the evidence on record, the failure of the 4th respondent to prove the allegations beyond reasonable doubt as required by law, and failure of the lower court to consider the submissions of the cross-respondent on same, the lower court can be held in the circumstances to have properly considered the objection to the votes and whether justice has been done to the appellants/cross-respondents?

RATIONES DECIDENDI

EVIDENCE OF WITNESSES -WHETHER THE EVIDENCE OF OTHER WITNESSES CAN BE EMPLOYED TO COUNTER THE EVIDENCE OF A WITNESS WHO WAS NOT DECLARED A HOSTILE WITNESS AND NOT RE-EXAMINED

“The evidence of other witnesses cannot be employed to counter that of PW40 who was not declared a hostile witness and not re-examined. Same points at internal contradiction in the evidence adduced by the appellants. The court will not pick and chose which one to believe and which to disbelieve. See: Boy Muka v. The State (1976) 10-11 SC 305; Onyemena v.The State(1974) All NLR 522 at 530.Like it happened in the case of Waziri Ibrahim v. Shehu Shagari (supra).”PER FABIYI, JSC

PROOF OF NON-COMPLIANCE WITH THE ELECTORAL ACT – BURDEN OF PROOF OF NON-COMPLIANCE WITH THE ELECTORAL ACT

“The burden remained on the appellants to prove that not only were the elections invalidated by reasons of non-compliance, but that the non-compliance with the Electoral Act was so substantial that the results of the elections had been affected thereby.” PER MAHMUD MOHAMMED, JSC

COURTS – COURTS ARE SET UP TO DETERMINE LIVE ISSUES

“Courts are set up to determine live issues. See Obi-Odu v. Duke (No.2) 2005 10 NWLR pt.932 p.120. Oyeney v. Oduagbesan 1972 4 SC p. 244, Bhojwani v. Bhojwani 1996 6 NWLR pt.457 p.663.”PER BODE RHODES-VIVOUR, JSC

CONCURRENT FINDINGS BY LOWER COURTS – ATTITUDE OF THE APPELLATE COURT TO CONCURRENT FINDING BY LOWER COURTS

“The law is trite that this Court will be loathe, reluctant and hesitant to interfere with such concurrent findings in the present case where the Appellants have made no attempt to show that the concurrent findings/decisions were perverse or not supported by credible evidence”. PER MAHMUD MOHAMMED, JSC

GROUND OF APPEAL- POWER OF THE COURT OF APPEAL TO STRIKE OUT ANY GROUND OF APPEAL WHICH DISCLOSES NO REASONABLE GROUND OF APPEAL

“The Court of Appeal is empowered upon application by the respondent or on its own motion to strike out any ground of appeal which discloses no reasonable ground of appeal.“PER FABIYI JSC

JUDGMENT -DUTY OF COURTS TO GIVE REASONS FOR THEIR JUDGMENT

“Trial courts and appeal courts must give reasons for their judgment. That is the hallmark of a well written judgment. See E. Egbanelo v. UBA Ltd 2000 7 NWLR pt.666 p.534.” PER BODE RHODES-VIVOUR, JSC

CASES CITED

Omotola v. The State (2009) 2-3 SC [pt.11] 196Buhari v. INEC [2008] 4 NWLR (PT.1078) 546

STATUTES REFERRED TO

Evidence Act, 2011

Electoral Act 2010 (as amended).

CLICK HERE TO READ FULL JUDGMENT