Action Congress Of Nigeria (Acn) Vs Real Admiral Murtala H. Nyako & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

OLUFUNLOLA OYELOLA ADEKEYE, J.S.C.

Aggrieved by the return of the 1st and 2nd Respondents herein as the Governor and Deputy Governor of Adamawa State respectively by the 4th Respondent at the end of the Gubernatorial Election the latter conducted on the 4th of February 2012, the Appellant, whose candidates in the election were the 6th and 7th Respondents, by its petition dated 24th February, challenged the return on the grounds that:-

(a) The 1st and 2nd Respondents did not score the majority of lawful votes cast at the election and

(b) That the election was vitiated by corrupt practices and substantial non-compliance with the provisions of the Electoral Act 2010 as amended.

Respondents filed their respective replies. At the conclusion of the pre-trial conference, the Appellant in establishing its case called Sixty Six (66) witnesses. It also tendered many Exhibits largely from the bar. While the 1st and 2nd Respondents called eight witnesses, the 3rd Respondent called One with the 4th and 5th Respondents calling none. At the end of trial including address of counsel, the tribunal by its judgment delivered on 25th July, 2012, dismissed Appellants petition.

Dissatisfied with the tribunals judgment, the Appellant appealed to the Court of Appeal. The court, on 22rd September 2012, dismissed Appellants appeal. The Appellant has further appealed to this court on a Notice containing sixteen grounds filed on 3rd October, 2012.

Parties have filed and exchanged their briefs of argument including the Appellants joint reply brief. At the Hearing of the appeal, parties respective counsel in addition to adopting and relying on these briefs also orally emphasized on the arguments contained in their briefs.

Eight issues have been distilled in the Appellants brief as having arisen for the determination of the Appeal. The issues read:-

“1 Whether their lordships of the Court of Appeal were right when they held at pages 3955 – 3958 of Vol. VIII of the Record that the Appellant neither sought to compel the attendance of the subpoenaed witness through legal process or apply for the certification of the secondary electoral documents in order to prove their case by tendering same through witnesses or commencing proceedings against the 5th Respondent under section 77(1) and (2) of the Electoral-Act, 2010 (as amended), – Ground 1 of the Notice of Appeal

Whether the Court of Appeal did not misdirect itself when, at pages 3916- 3917 of Vol. VIII of the Record, it endorsed the decision of the Tribunal castigating the evidence of the Appellants witnesses based on three particular paragraphs of their witnesss statement and the inclusion of the illiterate jurat and, therefore, rejected the evidence of the said witnesses. – Grounds 2 and 3 of the Notice of Appeal

Whether the Court of Appeal did not err in law and occasion a miscarriage of justice when, at pages 3921 -3923 of Vol. VI11 of the Record, it endorsed the Tribunals open abdication of its responsibility to go through more than 50 paragraphs of the Petition to which its attention were directed before concluding that the civil and criminal allegations contained in the Petition were not severable and that the Appellant did not prove the criminal allegations contained in the Petition. – Grounds 4 and 5 of the Notice of Appeal

Whether the testimonies of the Appellants witnesses who were ward supervisors could he regarded as hearsay simply because they did not mention the names of their polling agents and because they did not distinguish between what they saw and what their polling agents told them more so that the witnesses testified that what they saw and what their agents later related to them were one and the same thing against which evidence the Respondents did not call any evidence to challenge. – Grounds 6 and 7 of the Notice of Appeal

Whether the Court of Appeal was right when it held at pages 3937 and 3938 of Vol. VIII of the Record that PW66 admitted in cross-examination that he was not an expert when there was no such admission on record and concluded that the evidence of PW66 on the documents he analysed is an opinion evidence simply because PW66 did not participate in or witness the conduct of the election and that multiple voting can only he proved by biometric evidence. -Grounds 8, 9, 10 and 11 of the Notice of Appeal

Whether the Court of Appeal did not err in law and occasion a miscarriage of justice when, at pages 3939 -3940 of the judgment it held that PW66 was not a proper witness under Section 77 of the Evidence Act to testify in election matters and that despite the evidence of PW66, the Appellant could still be regarded as having dumped the documents tendered on the Tribunal. – Grounds 12 and 13 of the Notice of Appeal.