Markus Natina Gundiri & Anor Vs Rear Admiral Murtala H. Nyako & Ors (2012)
LAWGLOBAL HUB Lead Judgment Report
CLARA BATA OGUNBIYI, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Yola, Adamawa State delivered on 22nd September, 2012 by which the court dismissed the appeal of the appellants against the judgment of the Governorship Election Petition Tribunal Yola, delivered on 25th day of July, 2012 which dismissed their petition. The judgment of the Court of Appeal is contained at pages 3882 to 3918 of vol. VIII of the records of appeal while the Notice of Appeal against the judgment is contained at pages 3941 to 3949. Apart from the appeal of the appellant herein against the said judgment of the Governorship Election Tribunal, Yola to the lower court, there was also another appeal No. CA/YL/EPT/GOV/7/2012 against the same judgment filed by the 7th Respondent herein. The lower court consolidated the two appeals for hearing on the application of the appellants counsel. The judgment of the lower court in respect of this second appeal is contained at pages 3918 to 3934. The Brief facts leading to this appeal is that on the 4th day of February 2012, the 4th respondent conducted in Adamawa State, an election to the office of Governor of Adamawa State. The 1st and 2nd appellants were the Governorship and Deputy Governorship candidates respectively of the 7th Respondent while the 1st and 2nd respondents were the Governorship and Deputy Governorship candidates respectively of the 3rd respondent at the election. At the end of the election, the 4th, 5th and 6th respondents declared the 1st respondent winner, having credited him with 302,953 votes against 241,023 votes credited to the 1st appellant. Dissatisfied with the return of the 1st respondent as winner of the election, the appellants and their political party, the 7th respondent filed a petition at the Governorship Election Petition Tribunal, Yola. The complaints of the appellants in the petition were limited to particular units and wards in 11 local governments out of the 21 local governments in Adamawa State. The eleven local governments are Mayo Belwa, Fufore, Yola South. Yola North, Demsa, Madagali, Toungo, Numan, Girei. Mubi North and Maiha.
On the perusal of the totality of the petition, it could be gathered that the grounds predicating the complaints of the appellants against the election in their opinion bordered on substantial non-compliance with the Electoral Act, 2011, irregularities as well as criminal allegations.
On the one hand and in proof of the petition, the petitioners front loaded 76 witnesses out of whom 66 were called to testify. On the other hand, the 1st and 2nd respondents front loaded 73 witnesses but called only 8 out of the lot. The 3rd respondent who had given notice of its intention to call 73 witnesses ended up calling only 1 while the 4th – 6th respondents called no witnesses out of the 200 witnesses in respect of which they got leave of the Tribunal to call. At the end of the trial, the tribunal by its considered judgment delivered on the 25th day of July, 2012 dismissed the petition and hence an appeal to the Court of Appeal which per its judgment delivered on the 2nd September, 2012 also dismissed the appeal. The notice of appeal before us, being a product of the lower court judgment, was filed on the 3rd October, 2012 and containing nine grounds of appeal with their particulars. In accordance with the practice in this court, parties filed and exchanged their respective briefs of arguments. The appellant’s brief was filed on the 18th October, 2012 and was settled by Akin Olujinmi, SAN, and upon being served with the various Respondents briefs the appellants filed two sets of reply briefs in response thereof.
In otherwords, while a joint reply brief was filed in respect of 1st, 2nd, 4th, 5th and 6th respondents brief, another was filed in respect of that of the 3rd respondent. The respective briefs were all relied upon and adopted at the hearing of the appeal with some amplifications by counsel by means of adumbration. In the brief of the appellants nine issues were formulated from the nine grounds of appeal. Seven issues were raised on behalf of the 1st and 2nd respondents and also same by the 3rd respondent. The 4th, 5th and 6th respondents joint brief of argument in the same vein like the other respondents formulated seven issues for consideration. For the determination of this appeal I will deem it appropriate to adopt the issues formulated by the 1st and 2nd respondents as it will serve sufficient and all inclusive of those raised by the appellants and the other respondents. The reproduction of the seven issues are as follows:-
“1. Whether their Lordships of the court below were right in upholding the decision of the Tribunal in refusing to give credence to the evidence of PW1 – PW 65 on the ground that the evidence of those witnesses constituted hearsay evidence in that the witnesses failed to distinguish between what they saw themselves and what they were told by their polling agents quite apart from the fact that some of the depositions made in Hausa language were translated into English language by unidentified persons who failed to sign the jurat to show that the makers of the depositions knew the contents thereof. (ARISING FROM GROUND 1 OF THE GROUND OF APPEAL).
- Whether their Lordships of the court below were right in upholding the decision of the Tribunal that there was no duty on the Respondents to call evidence in rebuttal of what had not been established by the Appellants since the non-compliance alleged was not proved and that the petition was predicated largely on criminal allegations which were not established beyond reasonable doubt apart from the fact that both civil and criminal allegations were so intertwined in the pleadings as to make the doctrine of severance inapplicable. (ARISING FROM GROUNDS 2, 3, AND 4 OF THE GROUNDS OF APPEAL).
- Whether their Lordships of the court below were right when they upheld the decision of the Tribunal rejecting the evidence of PW 66 and his report Exhibit 759 on the ground, amongst others, that he was not an expert, had not witnessed the election and had no expert knowledge or any knowledge superior to that of the judges of the Tribunal and that his evidence consumed inadmissible opinion evidence. (ARISING FROM GROUND 7 OF THE GROUNDS OF APPEAL).
- Whether their lordships of the court below were right when they ruled that appeals are founded on the ratio decidendi of the judgment and that the complaint that the learned judges of the Tribunal preferred the issues formulated by the 3rd Respondent to those formulated by the Appellant did not arise from any of the decidendi of the judgment of the tribunal and therefore upheld the decision of the tribunal to determine the petition on the basis of issues formulated by the 3rd Respondent as opposed to those formulated by the Appellant. (ARISING FROM GROUND 5 OF THE GROUNDS OF APPEAL).
- Whether their Lordships of the court below were right when they upheld the decision of the Tribunal to the effect that forms EC8AS, EC8BS, EC8CS, EC8Ds and voters registers and other electoral documents tendered from the bar by counsel to the Appellants had no evidential value on the ground that they were dumped on the Tribunal not having been tied or related to the Appellant’s case through witnesses. (ARISING FROM GROUND 8 OF THE GROUNDS OF APPEAL).
- Whether the learned justice of the court below erred in law when the dismissed the appeal on the ground that it was completely lacking in merit. (ARISING FROM GROUND 9 OF THE GROUNDS OF APPEAL).
- Whether the learned justices of the court below upheld without justification or due consideration the decision of the Tribunal refusing to give probative value to the evidence of PW1 – PW 65 or whether they did so after and due consideration.(ARISING FROM GROUND 6 OF THE GROUNDS OF APPEAL).”
Issues 1 and 7 taken together. The learned appellants counsel by raising these issues is questioning the failure by the lower court in giving consideration to the erroneous refusal of the trial tribunal in giving evidential value to the appellants 22 witnesses. The grouse of the appellants therefore relates to the failure of the tribunal to give evidential value to the evidence of 22 of the appellants witnesses on the ground that the illiterate jurat contained in the witness statement of the witnesses were not signed by the interpreter. The counsel therefore alleged serious error on the part of the lower court in failing to intervene therein. That it is not shown on the record that the lower court did consider the case made out by the appellants against the judgment of the trial tribunal. That the lower court just simply agreed with the tribunal without more and dismissed the issue. That the law is trite that a duty lies on a court to consider all the issues that have been joined by parties. Reference in support was made to the case of Paul Edem Vs. Cannon Balls Ltd & Anor. (2005) 12 NWLR 27 AT 54 – 56. That an illiterate protection law even if it applies is for the protection of an illiterate person who seeks to disown a document which had not complied with the law. That none of the 22 witnesses in question disowned his witness statement. The following authorities are again cited in buttress of the submission:- Edokpolo & Co. Ltd V. Ohenhen (1994) 7 NWLR (Pt. 358) p. 511; Wilson V. Oshin (2000) 6 SC Pt 111 page 1 and Udeagha V. Omegara (2010) 1 NWLR Pt 129 p. 168. The learned counsel listed all the affected witnesses and related in particular to the witnesses P. W 2 and P.W 3. whom counsel argued gave cogent and compelling evidence of irregularities and substantial non-compliance in Mayo Belwa Local Government Area. He also laid emphasis on the evidence of P.W. 10. P.W. 13, PAY. 15. P.W. 17 and P.W. 18 which were in relation to the corrupt practices perpetrated at various units of Yola South Local Government Area. That their evidence which was unshaken and uncontroverted by the Respondents, go to confirm the allegations of non- accreditation, arbitrary allocation of votes, thuggery, inducement of voters, multiple voting and the fact that no election took place in some of the units of the Local Governments. The learned counsel also emphasized that even the 1st and 2nd respondents witnesses R.W. 1 and R.W. 3 under cross examination did confirm the non-compliance and irregularities alleged by the appellants. In otherwords, that persons of the same name, identity, sex and age voted 8 different times in Biti ward of fufore LGA.
That the miscarriage of justice occasioned by the lower court in upholding the decision of the tribunal had put the appellants at a great disadvantage. That had the evidence of the witnesses been accorded their appropriate unimpeached evidential weight, the case of the appellants would have been different. That this court is therefore called upon to uphold the said issues raised in favour of the appellants. In response to the said issues, the learned 1st and 2nd respondents counsel submitted at great extent on the hearsay nature of the evidence of the appellants witnesses P.W1 – P.W 65. The counsel argued and reiterated the evidence by the witnesses wherein they confirmed that their testimonies were based on what they were told by the polling agents appointed by the appellants and also what they witnessed themselves. That they were neither specific as to what they were told by the agents nor were they specific as to what they personally witnessed. In other words, that they did not distinguish between what they were told as against what they saw themselves. That the absence of the polling agents to testify at the tribunal as to what took place in their respective units has greatly worked negatively against the appellants. The sum total of the submission is that no explanation was given as to why the polling agents who witnessed the elections were not called to testify. The absence of their reports, counsel submitted was also not explained to the tribunal.
That there would have been no method by which the tribunal would have distinguished between what the witnesses saw themselves and what they were told by the polling agents. The absence of tile reports did not also avail the tribunal of its contents. That no reason was therefore given by the appellants as to why credence should have been given to the evidence of the said witnesses. Furthermore, counsel submitted that the depositions of the witnesses P. W. 1 – P.W. 65 failed to comply with section 115 of the Evidence Act. That the appellants witnesses alleged several electoral malpractices and criminal offences against the respondents ranging from non-accreditation of voters, over voting, financial Inducement, multiple voting, ballot box stuffing to falsification of results. That all these were stated to have happened at different times and in different places under circumstances which made it impossible for the deponents to have witnessed what was happening at different polling units, at the same time. That the agents at the relevant polling units ought to have been called therefore. That all that was available to the tribunal was the oral reports of the agents which the appellants chose to rely thereon. That the tribunal had no option but to treat such reports as hearsay evidence because the law requires the deponent to disclose the source of his or her information. The learned counsel re-iterated further that the findings by the tribunal which were admitted by the appellants were upheld by the lower court and against which there is no appeal.
Counsel further submitted that in addition to the depositions all being identical, they were also presented in a language other than that in which they were made. That this was peculiar to the 22 witnesses out of the 66 witnesses called by the appellants. That there was no explanation offered as to how depositions which had been made in Hausa metamorphosed into English. That these were not matters that a court of justice could ignore. With further reference made to the witness depositions filed along with the petition, the learned counsel pointed out that they were all couched in the same form and style, with the same facts and circumstance repeating themselves. In the circumstance, that the inevitable conclusion is that the petition was not accompanied by valid depositions, thus rendering the petition incompetent and robs the tribunal of the jurisdiction to entertain same. See the case of Buhari V. INEC (2008) 4 NWLR (Pt. 1078) and Chukwuma V. Nwoye (2011) All FWLR (Pt 553) 1942 at 1967. That the failure of the appellants to accompany the petition with credible witness depositions was a fundamental breach which robbed the tribunal of jurisdiction to entertain the petition see the case of Okereke V. Yaradua (2008) 12 NWLR (Pt 1100) 95 at 118. The learned Senior Counsel urged that the court below was right in upholding the view held by the tribunal that the character of the depositions is unreliable. The learned counsel on behalf of the 3rd respondent on account of his submission can be rated as an additional spokesman for the 1st and 2nd respondents. This of course is expected especially with the existing party relationship. The counsel in his submission aligned himself in totality with the contention advanced by the 1st and 2nd respondents’ counsel. In other words and contrary to the submission by the appellants’ counsel the said 3rd respondent’s counsel argued that the court below gave due consideration to this issue and came to the conclusion that it had no merit. That it is on the record that the witnesses P.W. 1 – P.W. 65 failed to distinguish between what they saw and what they were told by their polling agents. That the lower court was in proper perspective in their conclusion that the decision of the tribunal not to place any probative value on the evidence of P.W. 1 -P.W 65 could not be faulted.
The learned 3rd respondents counsel in further firm support of the submission made by the 1st and 2nd respondents’ counsel also cited a number of authorities which all go to advance the course of the identical nature of the principles highlighted. The counsel on this issue urged that same be resolved in favour of the 1st and 2nd respondents, and against the appellants. On behalf of the 4th, 5t and 6th respondents, their learned counsel submitted in agreement with the learned friends on behalf of the 1st and 2nd as well as the 3rd respondents. The counsel to buttress his submission went further to accredit and emphasize the findings by the tribunal as self explanatory in that the appellants’ witnesses failed to distinguish between what they saw and observed personally as against that told to them by their polling agents. The learned counsel cited the cases of Bamaiyi V. State (2001) 8 NWLR PAGE| 7 (pt. 715) p. 270 at 290; Buhari V. Obasanjo All FWLR (PT 273) Page 154, and Itashidu VS. Goje (2003) 15 NWLR (Pt 843) p. 352 at 393. That the reason abound and which the tribunal considered for not attaching probative value to depositions of the respective petitioners witnesses which reason was also upheld by the Court of Appeal. The counsel therefore urged us to so hold. On behalf of the 7th respondent, its learned counsel Dr. Banire applied to withdraw their brief filed on 18/10/12 and same was accordingly struck out. There is therefore no brief or submission by the 7th respondent herein. In further response to the respondents briefs the two sets of reply briefs filed on behalf of the appellants are merely to fulfill all righteousness because they have nothing new added to the main brief. I have therefore perused and considered the said reply briefs and the totality of the submissions contained therein are not a departure from the main brief but are mere emphasis thereof. The confirmation of this is the statement made by the appellants’ learned counsel himself wherein he concluded the two reply briefs by emphatically stating that the respondents have urged nothing in their briefs to whittle down the cogent arguments of the appellants on all the issues raised in this appeal. The cumulative complaint or grouse by the appellants in the 1st set of issues borders on the allegation that the learned tribunal judges either refused or totally failed to evaluate or properly so to do the evidence of 22 of their witnesses. This therefore raises the question of evaluation of evidence which the law specifically gives the duty to the trial court. In other words it is trite law that the onus of evaluating evidence is stricto senso that of the trial court and the appellate court should not be seen to interfere therewith except where there is evidence of failure by the trial court to properly evaluate or where there is a miscarriage of justice. It is elementary to state that the trial court is a court of evidence and therefore has the advantage of seeing and assessing the credibility of witnesses and their demeanors.
The totality of the appellants’ submission on the issues is that the miscarriage of justice occasioned by the lower court in upholding the decision of the tribunal lies in the refusal to attach evidential weight to the evidence of the said witnesses. It is pertinent to restate that the question of evaluation of evidence presupposes a construction of an imaginary scale in the mind of trial court judge(s) where upon the evidence of both contenders are put on this scale with the purpose of determining on which side of the scale the pendulum of justice would tilt. The evaluation would not be based on the number of witnesses, but rather on the credibility and acceptability of the evidence. In otherwords, there are determinant factors that will necessitate an evidence being acceptable and credible. Such evidence must come from a witness who has the first hand knowledge of that which he testifies to. He must in otherwords be a witness who saw or heard or took part in the transaction upon which he was giving evidence. Where a witness gives an account of an information which is not within his personal knowledge, he would not be accredited as a competent witness.
At page 3909 of the record of appeal, for instance the lower court held thus and said:
“The lower Tribunal in its judgment made specific findings that those witnesses failed to distinguish between what they saw and what they were told by their polling agents. The tribunal also found that the witnesses P.W 1 – P.W 65 did not only fail to disclose even the names of those agents who told them what happened at the polling stations, but also failed to present to the Tribunal any written report from any of the agents of what happened at the polling stations. The decision of the lower Tribunal not to place any probative value on the evidence of P.W. 1 – P.W 65 cannot be faulted.” Also at page 216 of its judgment (see page 3655 of the record of appeal) the trial tribunal held and said:- Another irritatingly repetitive item most of the witnesses statement on oath of the petitioners’ witnesses is the illiterate jurat. Even witnesses who testified before us that they deposed to their witnesses statement in English language their depositions contain illiterate jurat (There are 22 of such witnesses) all the said jurat were not signed by the interpreter. Though the witnesses kept mentioning the name of Sunday Mathew who is a lawyer.” The learned appellants’ counsel submitted at great extent in defence of the illiterate jurat contained in the said witnesses’ depositions and the fact that non of the 22 witnesses in question disowned his witness statement. It is pertinent to state that out of the 66 witnesses called by the appellants, 22 of them stated under cross examination that they made their depositions in Hausa language. The record did not show that the depositions adopted were those made in Hausa language which is not the language of the court. With the depositions adopted being in English language, the question to pose is, were those depositions adopted the same as those made by the witnesses.
To my mind and from all indications, the witnesses were adopting to depositions which were not intact made by them since English language was foreign to their understanding.. The appellants owed a duty to the court to have presented the very depositions made by the witnesses. The adoption of a different deposition was very defective and it could not have been rectified by the use of an illiterate jurat. The learned tribunal judges on this score said thus at page 216 of their judgment, (i.e to say page 3655 of the record.)
“Even witnesses who testified before us that they deposed to their witness statement in English their depositions contained illiterate jurat. (There are 22 of those witnesses.) All the said jurats were not signed by the interpreter; though the witness kept mentioning the name of one Sunday Mathew who is a lawyer. This creates a distinct impression in our minds that the written depositions were haphazardly mass-produced and names of witnesses, units, wards and local governments were inserted. They lack the well – known individuality and distinction required of a legal deposition which affects the weight we attach to them and we so held.”
From the foregoing findings by the trial tribunal, the law desires that witness depositions are to be individually identified with the maker. It is not enough an identity that non of the witnesses in question disowned the statement. They could not in otherwords have claimed rightly a deposition which was made in English language since they spoke in Hausa. The mentioning of the name of one Sunday Mathew, an interpreter, was not enough an identity. The learned appellants’ counsel cited the case of Udeagha V. Omegora (2010) 11 NWLR (Pt 1204) page 168 wherein it was held that a witness can adopt an irregular written deposition. With all respect, the situation at hand is remarkably distinguishable from the case under reference because it has nothing to do with adopting an irregular deposition. It is rather to do with a different deposition made in a distinct and alien language and which is being sought for adoption. The authority under reference, cannot with all respect, be applied in this case. In the same vein and for further expatiation, I would wish to state that there was also no explanation offered as to how depositions which were made in Hausa language could metamorphosed, into English language, as rightly submitted by the 1st and 2nd respondents’ counsel. There was again no dispute that, the depositions of the 22 witnesses were made in Hausa language and that the jurat was not signed. In the circumstance, and contrary to the submission by the learned Senior Counsel for the appellants therefore, the court below was on the right footing in upholding the decision of the tribunal when it said thus:
“The deposition under consideration were said to be made in Hausa language and translated and written into English by unidentified persons who failed to sign, to show that the makers of the depositions knew the contents thereof. The implication or the conclusion to be derived from that is that the deponents did not know the contents of what they deposed to.”
The law is well settled that as a precondition to the exercise of jurisdiction, the witness statements are to accompany the petition to be filed. The consequential effect of the failure to comply is that the tribunal was on a firm ground when it declined to exercise jurisdiction over the 22 witness depositions which it held were incompetent. See the case of Okereke v. Yaradua (2008) 12 NWLR (Pt 1100) page 95. It is also the contention of the appellants that the court below refused to give any consideration to their ground of appeal which complained that the tribunal refused to give probative value to the evidence of P.W.I – P.W. 65.
At page 3910 of the lower court’s judgment, it held thus. “The lower Tribunal in its judgment made specific findings that those witnesses failed to distinguish between what they saw and what they were told by their polling agents. The tribunal also found that the witnesses P.W.1 – P. W. 65 did not only fail to disclose even the names of those agents who told them what happened at the polling stations, but also failed to present to the tribunal any written report from any of the agents of what happened at the polling station.” For the determination as to whether or not the lower court erred in not giving proper consideration as alleged, recourse must be had to the record of appeal in order to get the proper picture of what transpired. For instance, it is on record that the witnesses P.W.1 – P.W. 65 failed to distinguish between what they said they were told from what they alleged they witnessed themselves. There is also no dispute that not a single one of the witnesses furnished the names of the agents who were alleged to have made reports to the witnesses. Not also a single one of those witnesses tendered the written reports which they alleged were delivered to them by the polling agents. There is also no appeal by the appellants contending that the record of appeal is defective on the foregoing findings made by the trial tribunal. In the absence of any challenge therefore the findings are binding. It is also on record that the witnesses P.W 1 P.W 65 being supervisors, their testimonies were based on what they were told by the polling agents, appointed by the appellants, as well as what they did witness themselves. In their testimonies, they gave evidence as to what they alleged transpired at the polling stations and the evidence which did not distinguish between what they saw, which was within their knowledge as against that which was told to them by polling agents. By the provision of section 115 of the Evidence Act, the law treats facts derived from personal knowledge differently from those derived from information obtained from some other source(s). The implication is that a deponent ought not to lump facts derived from personal knowledge with those obtained from other sources without distinguishing between the two. The particulars of the person who supplied the information with the name, address, time, place and circumstance must be stated by the deponent. The deponent must also state his believe in the information to be true. The particulars of the sources of the facts derived from the polling agents were not stated in the case at hand. See the cases of FGN V. AIC Ltd. (2006) 4NWLR (Pt 970) 337 at 357 and Doma V. INEC (2012) ALL FWLR (Pt 628) 813 at 829. In the absence of any distinction, therefore, the deduction is to expect the tribunal to sort out which of the mixed up evidence was to be allocated to either the witness or the polling agents. This is not the duty of the tribunal to do in the comfort of their chambers. Hence the deduction arrived at by the tribunal therefore was in order. In otherwords, that the entire evidence constituted hearsay evidence and which was properly rejected. The findings of the tribunal in that respect was reproduced earlier in the course of this judgment. I will not therefore repeat same.
It is also relevant to mention that the burden of proof was on the appellants as the petitioners to prove their petition. They are therefore under a duly if they must succeed, to prove their case with all the available evidence they could find. It is intriguing I hold, that the polling agents of the appellants, although they were themselves appointed specifically to witness the elections and are recognized under the Electoral Act, were not however called as witnesses. At least there is no evidence of such on the record. At page 3655 of the record, the trial tribunal in that respect held and said:- “for some unexplained reason, the petitioners failed to call a single polling unit agent who was at the polling units and witnessed first hand, the entire election process at the said units from commencement of election to announcement of result.” The failure to call the polling agents was very detrimental to the appellants” case. There is also no appeal against the said findings. As rightly submitted by the learned 1st and 2nd respondents counsel therefore, the tribunal could not be expected to assume that their evidence would have been favourable to the case of the appellants had the polling agents testified. The law to the contrary would require the tribunal to presume that, had the polling agents been called their evidence would have been detrimental to the appellants’ case and hence their reason for refusing them to testify. As a corollary, a case in reference is INEC V. Anthony (2011) 7 NWLR (Pt. 1245) p. 22 – 23 wherein it was held thus:-
“By the provision of section 46(1) of the Electoral Act, 2006, each political part) may by notice in writing addressed to the Electoral Officer of the Local Government or Area Council appoint a person as a polling unit to attend at each polling unit in the Local Government Area Council for which it has candidate. Such polling agents by the provision of section 44(3) of the Electoral Act, 2006, shall be present at the distribution of Electoral Materials from the office to the polling booth. Therefore from the above the only persons who are entitled by law to testify as to whether or not election result sheets were distributed and the time of the arrival of electoral materials at the polling units are the polling units agents.” The significance of the polling units agents cannot therefore be underestimated in the case at hand if the appellants must have the facts to prove their case. The best evidence the appellants could have had was that of the agents at the polling units who were physically on ground and in true position to testify as to what transpired at an election. The consequence of shutting them out for whatever reason is very detrimental to the appellants’ case. See the case of Hashidn V. Goje (2003) 15 NWLR (PT 843) 352 and Buhari V. Obasanjo (2005) All FWLR (pt 273) 1 at 164 – 165 wherein Ejiwunmi JSC said amongst others:
“The evidence required to establish a crime must be evidence of a witness who saw or heard or took pail in the transaction upon which he was giving evidence. It is written law that hearsay evidence is not admissible for the purpose of establishing a crime. See section 77 of the Evidence Act.
” On the fatal effect of failing to call a polling agent, the case of Agballah V. Sullivan Chime (2009) 1 NWLR (Pt122) 373 at 433 -434 is relevant wherein it was held in part thus: “None of the appellant’s party agent that allegedly represented, signed and collected the election results forms from the numerous polling units was called to testify in the petition. A fortiori the failure of the appellant to call the party agent that represented and served as his representative at the various polling units to give evidence was fatal to the petition.”
It is pertinent to restate that from the evidence of all the witnesses called by the appellants they admitted that their polling agents signed all the result sheets and did so voluntarily on the instruction of their party, the 7th respondent. The implication is therefore obvious as it would have authenticated the validity of the documents, in otherwords, the results sheets. The agents, at law were all presumed to understand what they appended their signatures thereto. They could not in the circumstance have turned around to deny the contents of their signatures. See the case of Egbase V. Oriareghan (1985) 2 NWLR (Pt 10) 887 also that of Okoya V. Santili (1994) 4 NWLR (PT. 338) P. 280 -281. I also hasten to add that as a ward supervisor such person is a competent witness under the Evidence Act; the issue in this case however is the failure to distinguish the clear cut evidence between information which is within his personal knowledge as against the information given him by the polling agent, who ought to have been called as a witness, but was not. Where a petitioner complains of non-compliance with the provisions of the Electoral Act, he has a duty to prove the non-compliance alleged based on polling unit by polling unit. See again the case of Ucha Anor. V. Elechi & 1774 Ors (2012) 3 SC (Pt 1) p 26. It is therefore physically impossible for one person to have supervised the election in ten polling units given the fact that witnesses are to be called from each polling unit. See the case of Senator Julius Ali Ucha V. Chief Martin Elechi & Ors.(supra) 2012 3 SC (Pt 1) p. 26. There is also no evidence indicating or giving the reason why they (agents) were not called or available. The reports by the agents in respect of which all the witnesses spoke so much about were also not tendered in evidence. One therefore wonders whether the appellants were really set out to prove their petition. Even if for some reasons the polling agents were not called to testify, the appellants should have foreseen that the agents’ reports are a necessity and therefore ought to have been laid before the tribunal. The witnesses P.W. 1 – P.W. 65 had their limitations and should not have been left to dabble through both what they saw and also that which was told to them by the polling agents. The appellants as architects of their case ought to have gone a step further. There was no way the tribunal would have known the contents of the reports without the makers identifying and placing them properly before them. The lower court and of course the tribunal could not be faulted in the conclusion arrived thereat page 3660 of the record wherein it held thus:-
“Unfortunately, they failed to distinguish between what they saw and what they were told by their polling unit agents. They also failed to disclose single name of their agents who not only told them what happened at their units but submitted to them a report. None of the reports by the polling agents was tendered in evidence even if to corroborate the testimonies of these wards supervisors this tribunal has no choice than to treat their entire evidence as hearsay evidence also.” There is no evidence that the appellants appealed against the foregoing findings of fact. They cannot now be heard to complain because they will have no justification since they are deemed to have admitted the facts so arrived at as being correct. The application of the law to the facts so arrived at cannot also be disputed as rightly held by the lower court wherein it affirmed that the trial tribunal was right when it refused to give credence to the evidence of P.W 1 – P.W 65. Issues 1 and 7 are therefore resolved against the appellants. The next set of issues to be considered are the earlier adopted 1st and 2nd respondents issues 2 and 6 which will also be taken together. The same I hold, also encapsulate the appellants’ issues 2, 3, 4, and 9. The said 1st and 2nd respondents issues 2 and 6 therefore read as follows:-
(2). Whether their Lordships of the court below were right in upholding the decision of the Tribunal that there was no duty on the Respondents to call evidence in rebuttal of what had not been established by the appellants since the non-compliance alleged was not proved and that the petition was predicated largely on criminal allegations which were not established beyond reasonable doubt apart from the fact that both civil and criminal allegations were so intertwined in the pleadings as to make the doctrine of severance inapplicable.
(6). Whether the learned justices of the Court below erred in law when they dismissed the appeal on the ground that it was completely lacking in merit. The appellants’ basic complaint in the foregoing issues squarely centres on the principle of the doctrine of severance and sought specifically to question the conclusion arrived at by the lower court wherein it held thus at pages 3897 to 3898 of the record in respect of the decision of the trial tribunal and said: The above conclusion by the lower tribunal was rightly arrived at and AD V. Fayose was applicable in the circumstances. Where both civil and criminal allegations are implicitly intertwined in the pleadings giving rise to the petition, the doctrine of severance is not applicable.” The learned counsel on the foregoing pronouncement submitted that the lower court merely confirmed the holding of the tribunal without any consideration of the arguments by the appellants. The counsel relied on the authorities of Omoborowo V. Ajasin (1984) 1 SCNLR page 108 and Fayemi V. Oni (2010)17 NWLR (Pt. 1222) P326 which were urged upon the tribunal to the effect that allegations that are civil in nature can be severed from the ones that are criminal in a pleading with a view to applying the appropriate standard of proof in each case. That it was on the basis of these authorities therefore, that the tribunal was urged to invoke the doctrine at the final address stage which fact counsel argued was acknowledged by the Tribunal in its judgment at pages 3655 – 3656 of vol. VIII of the record. That by the tribunal selecting certain sub-paragraphs of paragraph 18 which are criminal in nature and glossing over those sub paragraphs which are civil in nature, the appellants are clearly denied their right to fair hearing. The learned counsel heavily relied on the case of Omoborowo V. Ajasin (supra) and submitted as obvious from the record that the lower court, from the record did not give proper consideration to the appellants’ appeal and hence the erroneous confirmation by the trial tribunal in its judgment.
The further complaint by the appellants was against the holding by the tribunal that the hub of the petition was the several criminal allegations raised in the petition. Counsel again submitted the absence of consideration by the lower court and hence a further denial of fair hearing. That the summary of the appellants’ arguments at the lower court was to the effect that the petition raised both civil and criminal allegations. That since the lower court held at page 3901 that the petition raised both civil and criminal allegations, it was therefore clearly wrong for the lower court to uphold the decision of the tribunal that the hub of the petition was the several criminal allegations raised therein. In further submission, the learned appellants counsel also emphasized that in the absence of the 4th to 6th respondents failing to call any witness in support of their pleadings, the effect in law is that they are deemed to have totally abandoned their pleadings. The learned counsel in buttress of his submission cited the cases of Alhaji Muhammadu Maigari Dingyadi and Anor. V. AUyu Magatakarda Wamako (2008) 17 NWLR (Pt. 1116) 395 at 431. That the 4th – 6lh respondents are therefore deemed in law to have admitted all the evidence given by the appellants relating to non-compliance with the Electoral Act and irregularities in the conduct of the election. That by the 1st to 3rd respondents also having failed to lead evidence in support of also deemed to have abandoned their pleadings in respect of the averments. That had the lower court given proper consideration to the issues raised by the appellants, it would have found in their favour therein. The counsel therefore urged that this court should resolve the issues in favour of the appellants. The 1st and 2nd respondents issues 2 and 6 were taken together and same as I said earlier encompasses appellants issues 2, 3, 4 and 9. The learned counsel on behalf of the 1st and 2nd respondents on the foregoing issues therefore submitted at great extent in urging the court in the light of concurrent findings of facts by of both the court below and the trial tribunal to uphold the judgments in the absence of impeaching or faulting same in this appeal.
That with criminal allegations made in virtually every paragraph of the petition, once those paragraphs were struck out there would have been little or nothing left to go to trial. That it was only at the final address stage that it dawned on the appellants that they have not come anywhere near proving the several criminal allegations made by them in the petition and hence the application in urging the tribunal to sever the pleadings so that the petition could rest solely on civil allegations. That such an application cannot be made at such final address stage without affording respondents the opportunity to address on the issue. That the severance of pleadings was not an exercise which the tribunal could undertake in the privacy of the judges’ chambers behind the back of the respondents. That the appellants singled out 50 paragraphs of the petition which in their view supported the grounds of non compliance with the provisions of the Electoral Act and which contention was refused by the trial tribunal and was also upheld by the lower court. The learned counsel submitted further that the appellants on their part have not in this appeal shown that the criminal and civil allegations were not inextricably intertwined or that the allegations were severable. That the failure to do so is fatal to their appeal. On the pronouncement made by the tribunal on paragraphs 18(a) -(s) of the petition, the learned counsel re – emphasized that the appellants, in the absence of any complaint thereon cannot be heard at this stage that the allegations are not criminal in nature and which same were not proved. That the proof of allegations of corrupt practices and the other criminal allegations must be beyond reasonable doubt. Counsel related to the view which has been well settled in the case of Falae V. Obasanjo No. 1 (1999) 4 NWLR (Pt 599) 435 and Wali V. Bafarawa (2004) 16 NWLR (Pt 900) 6 & 7.
The learned counsel further argued that the appellants listed what they alleged to be the civil allegations made in the petition. This, counsel submitted were all mixed up with criminal allegations which were not proved. That the non compliance pleaded was not substantial having regard to the generality of the complaints in respect of the local government areas. The counsel analyzed the said local governments complained against and submitted in totality that the effect of the non compliance alleged was neither pleaded nor proved. Counsel also submitted that the failure to plead an alternative result by the appellant was detrimental to their case. That it was expected of them to have stated the official scores and thereafter state the scores which they believe are correct. That the results declared by INEC is, in law, presumed to be correct. Furthermore that the criminal allegations having not been proved by the appellants, there was no duty on the respondents to call evidence in rebuttal. On the question of abandonment of pleadings by the respondents as alleged by the appellants, learned counsel submitted that there was no evidence to be rebutted with the appellants failing to prove the allegation made in the petition. That evidence may also be led by way of a cross examination. Counsel therefore urged that the issues ought to be resolved against the appellants. The 3rd respondents’ counsel in respect of issues 2 and 6 submitted along the same line of arguments by the 1st and 2nd respondents. I will not therefore repeat his submission for purpose of avoiding monotony and also to save time.
The 4th, 5th and 6th respondents argued issues 2 and 6 in their issue 2, 4 and 7. In their submission on issue 2 relating the principle of the doctrine of severance, counsel argued the appellants’ misappreciation of the holdings by the trial tribunal which was affirmed by the court of appeal. That the paragraphs of the petition contained allegations of crime which were inextricably interwoven with civil allegations. That the appellants counsel in urging the tribunal to severe the civil allegation was rightly refused by the tribunal because it would have amounted to a counsel’s address taking the place of evidence. That the law is trite that where civil allegation is not severable from criminal allegation, the civil allegation cannot therefore succeed on its own. Counsel therefore urged us to hold that the appellants’ pleadings before the tribunal are not severable from the criminal allegations. That the said issue should be resolved against the appellants. On the question of abandonment of pleadings by the respondents, the learned senior counsel representing the 4th, 5th and 6th respondents again submitted the clear misappreciation of the position of the law by the appellants. That non-calling of witnesses did not amount to non calling of evidence. The appellants are to rely on the strength of their case and not on the weakness of the defence. See the case of Ucha V. Elechi (2012) All FWLR (Pt. 625) P 237 at 262. That this court should therefore affirm the judgment of the lower court. Learned counsel further argued that the appellants in the circumstance are only entitled to be granted the reliefs which they asked for subject however to the proof thereof by evidence. That in the absence of such proof the lower court was in order by affirming the decision of the trial tribunal. That the issues in the circumstance should be resolved against the appellants therefore. The determination of the said issues 2 and 6 are clearly predicated on the principle of the doctrine of severance. The law is trite and well settled that in situations where civil allegations are severable from criminal allegation, a party is entitled to succeed on his civil allegation if proved. The following authorities are in support. Nwobodo V. Onoh (1984) NSCC 1 at 16 – 17; Wuam Vs. Ako (1999) 5 NWLR (Pt 601) 150 at 163 and Agagu V. Mimiko (2009) 7 NWLR (Pt 1140) 342 at 401. I hasten to point out clearly that for the doctrine of severance to apply, there must be clear and distinctive compartmentalization or separation of criminal allegations from those which are civil in nature, in otherwords, while in the civil atmosphere there should be no allusion to criminal assertions, so does it also apply to civil assertions. The two cannot be interwoven or criss-crossing. See the case of AD V. Fayose (2005) 10 NWLR (Pt. 932) P 151 at 239.
The demarcations should also be clear cut and well defined in the pleadings. The duty to do so rests on the petitioner and it is not that of the court or tribunal as it will amount to taking over the responsibility of doing one party’s case to the detriment of the other party. The court is to be seen as an impartial umpire who should be adjudicating between parties. The law is also trite that in a claim for declaration, the onus is on the plaintiff/petitioner to establish his case on the strength of his evidence and not on the weakness of the case of the Defendant. The heavy weather made by the appellants in hammering on the respondents failure to call evidence in proof of their pleadings is a confirmation that the appellants are hiding behind one finger by abdicating their duty in proving the declaratory reliefs sought for. The proof is not determinant on whether or not the respondents called witnesses, but which squarely rests on the appellants by law. The case in reference is CPC V. INEC (2012) FWLR (Pt. 617) 605 at 633 – 634. The law is also well settled that it is the pleadings that determines the plaintiff’s claim. At this stage I will also seek to rely on the judgment of the tribunal wherein it held at page 3658 of the record of appeal and said;- “The hub of this petition upon which the wheel turns are the several allegations of crime made by the petitioner against the 1st, 3rd and 4th Respondents. The allegations include among others (1) Rigging (2) Snatching of ballot boxes (3) Stuffing of ballot boxes with thump print ballot papers in favour of the 1st and 3rd respondents (4) Underage voters and voting (5) allocation of results in favour of 1st and 3rd respondents (6) falsification of results (7) monetary inducement of voters (8) non accreditation of registered voters (9) preventing accredited voters from voting (10) diversion of ballot papers and ballot boxes (11) intimidation and harassment of voters (12) thuggery and violence etc. It is the contention of the petitioners that these criminal allegations rendered the entire election of 4th February, 2012 invalid. It is trite law that these criminal allegations need to be proved by the petitioners beyond reasonable doubt.”
It is further very significant to restate that their Lordships of the court below after they had reviewed the record relating the petition and the evidence in respect thereof, came to the following deductions at pages 3901 – 3902 of the record of this appeal and comprehensively said thus:-
“Having perused the contents of the petition contained at pages 1 – 69 of volume 1 of the records of appeal, it is evident that of the 152 paragraphs thereof, 129 paragraphs were devoted to both criminal and civil allegations against the 1st – 3rd respondents whilst 86 of the paragraphs are express criminal allegations. See paragraphs 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42, 43, 44, 45, 46, 47, 48, 49, 52, 54, 55, 56, 57, 58, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 75, 76, 77, 78, 79, 80, 81, 82, 83, 85, 86, 87, 88, 89, 90,91,92, 93, 94, 96, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 113, 114, 115, 116, 117, 118, 119, 120, 121, 125, 126, 127, 130, 131, 132, 133, 134, 137, 140, 141, 143, 144, 145, 146, and 147 of the petition. The criminal allegations contained in the above mentioned paragraphs of the petition ranged from multiple thumb-printing of ballot papers, arbitrary allocation of figures, multiple voting, intimidation and harassment of voters over voting, snatching of ballot boxes, financial inducement, bribery, thuggery, falsification of voters, kidnapping of ACN agents, etc. Undoubtedly, these were criminal acts which needed to have been proved beyond reasonable doubt as required under section 135 (1) and (2) of the Evidence Act 2011, and there seems to be no contention by the appellants on that position of the law, on the authorities relied upon by-all counsel herein. I agree with them too. It is preposterous to suggest that an act of falsification can be weaned of its criminality.” In the light of the above deductions arrived at by the lower court, their Lordships of that court therefore upheld the findings of the tribunal in the following terms at pages 3903 to 3904 of the record:- “I fail to see any error in the opinion of the learned trial lower Tribunal stated above. This is because of the fact that having earlier declined the invitation by the petitioners/appellants to severe/separate the criminal allegations from the civil allegations of non-compliance with the electoral act, 2010 (as amended because they inextricably intertwined, and had further found that the civil allegations of non-compliance with the electoral act, 2010 (as amended) was not proved by the appellants the fate of the petition remained only on the prove (sic) or otherwise of the several criminal allegations contained in the said petition. I am satisfied that this issue is lacking in merit and it is therefore resolved against the appellants.” From the collective deduction of the concurrent findings of fact by the two lower courts, the following conclusion is very apt. In otherwords, the following phrase in the judgment of the tribunal at page 3658 which was earlier reproduced supra is very crucial; I will deem it necessary to again make reference thereto even at the risk of repetition. This is what it said:-
“It is the contention of the petitioners that these criminal allegations rendered the entire election of the 4th February, 2012 invalid. It is trite law that these criminal allegations need to be proved by the petitioners beyond reasonable doubt.” It is not surprising therefore that the 4th, 5th and 6th respondents counsel in their submission argued that the appellants counsel on his argument failed to appreciate the holdings of the Tribunal which was affirmed by the lower court. This, learned counsel submitted because on a perusal of the paragraphs of the petitions, they contain allegations of crime which are inextricably interwoven with the civil allegations. The case of AD V. Fayose (supra) is also well applied that if the civil allegation is not severable from criminal allegations, then the civil allegations cannot succeed on its own. The two will become like Siamese twins. I hasten to add also that the appellants did not deem it necessary to appeal against the foregoing findings. They are therefore deemed to have admitted same. Also, that with the allegations being criminal in nature, they knew and have conceded that the allegations needed to be proved beyond reasonable doubt. It is also on record that the appellants invited the tribunal judges to sever the criminal allegations from the civil allegations because they were inextricably intertwined. The learned counsel for the 4th, 5 and 6th respondents on their brief submitted in great detail that such invitation by the appellants at an address stage was meant to overreach the respondents, who would not have had the opportunity to put in their response, if the act of severance was to be done in the comfort of the tribunal judges chambers. I wish to point out also that the inextricably interwined nature of the criminal and civil allegations was found by the tribunal as inbuilt in the pleadings. I seek to emphasize that there is no appeal against the findings.
In otherwords, if the criminal allegation had penetrated the entire election of the 4th February, 2012 as per the tribunal’s findings, it is then only reasonable to draw a conclusion that there is nothing left upon which the appellants are to contest on a platform of civil allegations. The appellants for all intent and purpose have to contend with proving criminal allegations. This, I hold especially on the confirmation by the lower court in its findings at page 3904 of the record reproduced earlier in the course of this judgment wherein it held that:- “the fate of the petition remained only on the prove (sic) or otherwise of the several criminal allegations contained in the said petition.”
The dilemma in which the appellants have found themselves is very critical and unwinding. In otherwords, the appellants by their appeal are fighting tooth and nail that the principle of the doctrine of severance ought to have applied to their petition. They are also contending that having failed to prove the criminal allegations, they could still anchor on the civil alternative claim. It is obvious that the appellants are not resting their appeal on criminal allegations, which they have found to be a very hard nut to crack. The truth is also obvious and staring in the appellants’ faces that they have completely shut out themselves from relying on civil allegations. The confirmation is on the record wherein both the lower court and also the tribunal had found on the intertwined nature of the appellants’ petitions and concluded that they are criminal in nature. The appellants in the circumstance have found themselves at a crossroad since they are neither here nor there. While the criminal aspect is no longer open to them, they are not also availed the civil alternative having been long shut out. The said issues 2 and 6 are therefore resolved against the appellants. At this point and with the conclusion arrived thereat on issues 2 and 6 supra, it will only amount to an academic exercise to consider the rest of the issues 3, 4 and 5 herein which by implication are also all resolved against the appellants. On the totality of this appeal and with all issues resolved against the appellants, I hold the firm view that the appeal is devoid of any merit and is hereby dismissed. In otherwords, the judgment of the lower court which upheld that of the trial Tribunal is also affirmed. In the final result therefore, the election and return of the 1st and 2nd respondents as the Governor and Deputy Governor of Adamawa State respectively, is further upheld. I make no order as to costs.
UpC.410/2012