CORAM

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PARTIES

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UMAR MUSA BORORO APPELLANTS

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HON. YAKUBU MUSA DIRBISHI RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

This appeal is in respect of the election into the seat of member Mubi South State Constituency of Adamawa State held on 9th of March 2019, wherein the 1st Appellant contested the election under the platform of the 2nd Appellant and won, while the 1st Respondent contested the election on the platform of the 2nd Respondent and lost. The 1st and 2nd Respondents who were dissatisfied with the outcome of the said election filed a petition challenging the said election and the qualification of the 1st Appellant to contest the election. At the final address stage, the Appellants raised an objection to the admissibility of all the documents tendered by the 1st and 2nd Respondents, on the grounds that Exhibits A – A16, B – B8, C – C10, D – D8 were not certified in compliance with Section 104 of the Evidence Act, also that Exhibit D9 was not certified and Exhibits E – E2 were neither certified nor pleaded by the 1st and 2nd Respondents. At the close of the trial in its judgment, the Tribunal held that the 1st Appellant was not qualified to contest the election held on 9th March, 2019 and that the 3rd Respondent should declare and return the candidate who polled the majority of the lawful votes cast in the election other than the Appellant.

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HELD

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Appeal Allowed

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ISSUES

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Whether the trial Election Petition Tribunal in its judgment rightly overruled the Appellants’ objection on the admissibility of Exhibits A – A16, B – B8, C – C10, D – D9 and E – E2 thereby refusing to expunge them from the record of the trial Election Petition Tribunal. Whether the trial Election Petition Tribunal was right in its judgment to have held that the Appellants had admitted the allegations in the petition thereby lessening the burden of proof on the 1st and 2nd Respondents to proof (sic) the allegation of crime in the petition beyond reasonable doubt. Whether the trial Election Petition Tribunal was right to have held in its judgment that there was material contradiction regarding the name of the 1st Appellant on his Credentials which lessen the burden of proving forgery beyond reasonable doubt. Whether the trial Election Petition Tribunal in its various findings and/or conclusions on the petition failed to properly appraise, evaluate and/or consider the totality of the oral and documentary evidence adduced at the Tribunal before coming to the conclusion that the 1st Appellant was not qualified to contest the election into Mubi South State Constituency of Adamawa State held on the 9th March, 2019. Whether having regard to the totality of the evidence adduced before the trial Election Petition Tribunal, the failure of the 1st Appellant to testify at the Tribunal can in anyway assist the 1st and 2nd Respondents’ case. Whether the trial Election Petition Tribunal was right to have ordered the 3rd Respondent to declare and return as elected the candidate that scores votes (sic) next to the 1st Appellant in the election.”

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RATIONES DECIDENDI

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PRELIMINARY OBJECTION AND ISSUES FOR DETERMINATION – DISTINCTION BETWEEN PRELIMINARY OBJECTION AND ISSUES FOR DETERMINATION

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“I must point out that there is a difference between a preliminary objection and issues for determination. The issues formulated for the determination of an appeal are derived from the grounds of appeal challenging the decision appealed against, while an objection to a ground or grounds do not, and could relate to a matter decided in the judgment appealed against. It was improper for the 1st and 2nd Respondents to have included in the issues formulated for determination, an issue relating to the objection to the competence of an issue, issue one to be precise. The supposed objection to issue one argued before the merits of the said issue was not properly raised. See, Fabunmi Vs. Ajayi & Anor (2007) LPELR – 3839 (CA) PP. 9 – 10, PARA. A, Awusa Vs. Nigerian Army (2018) LPELR – 44377 (SC) PP. 5 – 6, PARAS. E – F, Odunze Vs. Nwosu (2007) 13 NWLR (PT. 1050) 1 and Najega Vs. Salihu (2018) LPELR – 46603 (CA) PP. 10 – 12, PARAS. E – F.”

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PLEADINGS – PUROSE OF PLEADINGS

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“It is trite that parties are bound by their pleadings and evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the Court. The aim of pleadings is to give notice of the case to be met by the other party which enables both parties to prepare their evidence and argument upon the issues issues the pleadings; it saves either side from being taken by surprise at the hearing. In National Investment & Properties Co. Ltd. Vs. Thompson Organisation Ltd. & Ors (1969) N.M.L.R. 99 at PAGE 104, the Supreme Court held thus:
“A plaintiff must call evidence to support his pleadings and evidence which is in fact adduced which is contrary to his pleadings should never be admitted. It makes no difference, as Chief Akingbade suggested, that the other side did not object to the evidence or that the judge did not reject it. It is of course, the duty of counsel to object to inadmissible evidence and the duty of counsel to object to inadmissible evidence and the duty of the trial court any way to refuse to admit inadmissible evidence, but if notwithstanding this, evidence is still through an oversight or otherwise admitted, then it is the duty of the court when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted.”
See, Idahosa Vs. Oronsaye (1959) 4 F.S.C. 166 at P. 171, George Vs. The United Bank For Africa Ltd., SC 209/1971 of 29th september, 1972; (1972) 8/9 SC. 264 at PAGE 275, Emegokwue Vs. Okadigbo (1973) LPELR – 1124 (SC) PP. 5 – 7 PARAS. E – D, Nwafor Vs. Anyaegbunam (1978) LPELR – 2765 (SC) P. 15, PARAS. B – F, Akinbade & Anor Vs. Babatunde & Ors (2017) LPELR – 43463 (SC) PP. 19 – 20, PARAS. F – B and National Investment & Properties Co. Ltd. Vs. The Thompson Organisation Ltd & Ors (1969) LPELR – 43463 (SC) P. 6, PARAS. C – D.”

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FORGERY- DEFINITION OF FORGERY

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“Forgery” as defined in the 7th Edition of Black’s Law Dictionary, page 661 is as follows:
“The act of fraudulently making a false document or altering a real one to be used as if genuine.
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A false or altered document made to look genuine by someone with the intent to deceive.
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Also termed fake.”

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PROOF OF FORGERY – MODE OF PROVING FORGERY

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“The question is: did the 1st and 2nd Respondents prove that the 1st Appellant’s credentials were forged or fake at the trial? Forgery and alteration of documents are criminal in nature and needed to be proved beyond reasonable doubt that, the 1st Appellant falsified his School Certificate. In Arebi Vs. Gbabijo & Ors (2008) LPELR – 3803) CA – P. 43, PARAS. A – C, where his lordship Galinje, JCA (as he then was) on how to prove forgery held thus:
“For the Petitioner to succeed in proving the offence of presenting a forged document, he must prove the following ingredients, to wit –
(1)That Exhibits B and B were forged. (2) That the 1st Respondent was in possession of the Exhibits knowing them to be forged. (3) That he did present them to the INEC knowing that they would be used fraudulently or dishonestly as genuine.”
See, Inyang Vs. State (2012) LPELR – 20065 (CA) PP. 39 – 40, PARAS. D – B, Sabiya Vs. Tukur (1984) NSCC 559 at 560, Nwobodo Vs. Onoh (1984) 1 SC NLR 1 at 14 and Babatola Vs. Adewumi (2011) LPELR – 3945 (CA) PP. 50 – 51, PARAS. C – D. It is settled law that he who alleges must prove as provided by Section 135 (1) of the Evidence Act, 2011, the standard required is beyond reasonable doubt. See, Nduul Vs. Wayo & Ors (2018) LPELR – 45151 (SC) P. 86, PARAS. E – F, ACB Plc Vs. Ndoma –Egba (2000) LPELR – (9139) (CA) P. 10, PARAS. A – C, Ikoku Oil (1962) 1 SC NLR 307, Adelaja Vs. Alade (1999) 6 NWLR (PT. 608) 544 at 557 – 558, Ogah Vs. Ikpeazu & Ors (2017) LPELR – 42372 (SC) PP. 66 – 67, PARA. A and Torti Vs. Ukpabi (1984) 1 NSCC 141 at 145.”

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UNCHALLENGED EVIDENCE – WHETHER COURTS CAN ACT ON UNCHALLENGED EVIDENCE

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“The law is trite and enjoins a Court or Tribunal to act on an unchallenged evidence. The 1st and 2nd Respondents had the opportunity to challenge the evidence given by the DW1 to the effect that Umar Musa and Umar Musa Bororo does not refer to one and the same person but, they failed to do so. The Tribunal was therefore duty bound to act on the unchallenged evidence before it that, Umar Musa is the same person as Umar Musa Bororo, the 1st Appellant. See, Omoregbe Vs. Lawani (1980) LPELR – 2655 (SC) P. 16, PARAS. A – D, Mtn Vs. Corporate Communication Investment Ltd. (2019) LPELR – 47042 (SC) PP. 53 – 54, PARAS. B – C Odulaja Vs. Haddard (1973) 11 S.C. P. 35 and Kayili Vs. Yilbuk & Ors (2015) LPELR – 24323 (SC) P. 36, PARA. A.”

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Electoral Act, 2010 (as amended) Evidence Act, 2011 (as amended)

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