Bilkisu Tinuola Gambari & Anor V. Miss Gbemisola R. Saraki & Ors (2009)

LawGlobal-Hub Lead Judgment Report

JUMMAI HANNATU SANKEY, J.C.A.

Bilkisu Tinuola Gambari contested the Kwara State Central Senatorial District election on the platform of the Action Congress, which is the 2nd Appellant herein, on the 28th April, 2008. Among others, she contested with Gbemisola R. Saraki, the 1st Respondent, who contested on the platform of the Peoples Democratic Party, the 2nd Respondent herein. At the conclusion of the election, the 1st Respondent was declared duly elected, having scored a majority of 248, 589 votes against the 1st Appellant’s 12, 474 votes. Evidently dissatisfied with this declaration, the Appellants filed a Petition before the Election Petitions Tribunal wherein they sought an order declaring the 1st Respondent’s election invalid and void on five grounds as set out in the Petition. At the close of trial, the lower Tribunal, not being persuaded by nor enamoured of the evidence adduced by the Appellants, in its judgemnt delivered on the 2nd June, 2008, held that the Appellants had failed to prove their case and so dismissed the Petition. Once more dissatisfied by the decision, the Appellants appealed to this Court. They filed seven grounds of Appeal.

On the 27th October, 2008, at the hearing of the Appeal, Mr. Jawondo, learned Counsel for the Appellants, adopted the Appellants’ Brief of argument as well as their reply brief filed on 20th August, 2008 and 9th September, 2008 respectively. Counsel submitted an additional list of authorities to support his submissions in the Briefs. He urged the Court to allow the Appeal.

Mr. Egbewole, learned Counsel for the 1st Respondent adopted the 1st Respondent’s Brief dated and filed on the 25th August, 2008. Learned Counsel responded to the additional authorities submitted by the Appellants’ Counsel and urged the Court to dismiss the Appeal.

Mr. Oladipo, learned Counsel for the 2nd Respondent, equally adopted the 2nd Respondent’s Brief of Argument dated and filed 18th September, 2008. Having not been served with a copy of the additional authorities filed by the Appellants’ Counsel, he urged the Court to discountenance same. Counsel went on to urge the Court to dismiss the Appeal.

Finally, Mr. Salako, learned Counsel for the 3rd to 32nd Respondents, adopted the 3rd to 32nd Respondents’ Brief dated and filed on 8th September, 2008. Counsel aligned himself with the submissions of Mr. Egbewole in respect of the additional authorities, and urged the Court to dismiss the Appeal.

From the Grounds of Appeal filed, the Appellants, in their Brief of Argument, distilled four issues for determination by this Court. On their part, the 1st Respondent, 2nd Respondent and 3rd to 32nd Respondents respectively each formulated issues from their vantage points ranging from two to three, for determination by this Court. On a close perusal of the Grounds of Appeal filed in conjunction with the facts as disclosed in the transcribed record of the Tribunal, I am of the view that the following three issues suffice to dispose of the Appeal:

1. Whether, given the evidence adduced and presented, the Tribunal was in error when it applied the decision of the Supreme Court in the case of Buhari V. Obasanjo (2004) 2 NWLR (Pt. 910) 241 at 310 to the peculiar circumstances of the Petition.
2. Whether the Tribunal was in error when it held that the election was conducted in accordance with the provisions of the Electoral Act.
3. Whether the Tribunal failed to, properly consider and evaluate the evidence of the Petitioners and their witnesses.

Under issue one, which is whether, given the evidence adduced and presented, the Tribunal was in error when it applied the decision of the Supreme Court in the case of Buhari V. Obasanjo (2004) 2 NWLR (Pt. 910) 241 at 310 to the peculiar circumstances of the Petition, the fulcrum of the Appellants’ complaint is that the Tribunal erred when it relied on the decision in the case of Buhari V. Obasanjo (2004) 2 NWLR (Pt. 910) 241 at 310 to condone the failure of the 3rd Respondent to produce certain electoral documents, i.e. the Voters’ Registers, the INEC Data Base of the Electronic Voters’ Registers and the Result Forms listed in the Subpoena Duces Tecum served on it. The Appellants contend that the documents and materials listed in the Subpoena are covered by the pleadings, particularly paragraph 22 of the Petition and crucial to the Appellants’ case. They also contend that, by Section 73 of the Electoral Act, 2005, the 3rd Appellant has exclusive possession and custody of the listed documents and yet, refused to produce them, thus making it impossible for the Appellants to use the documents and the materials for the prosecution of the Petition. The exception being the Forms EC8A, EC8B, EC8C and EC8D in respect of which copies are supposed to be given to the Appellants or their agents. The Appellants however refer to paragraph 18. 1 (i), (ii) and (iii) of the Petition where they stated that they were not in possession of the Result Forms because their agents where driven away from the polling and collation centres. The Appellants argue that, in this circumstance, they cannot be expected to have recourse to secondary copies of the election documents/materials. It is for this reason that they contend that the decision in Buhari V. Obasanjo (Supra) is not applicable to the facts and circumstances of this Petition and so was wrongly invoked by the Tribunal. Instead, the Appellants postulate that the Tribunal acted wrongly in failing to invoke the provisions of Section 149 (d) of the Evidence Act against the 3rd Respondent considering these state of affairs.

The Appellants further contend that, having regard to the Appellants’ allegations of non-voting, multiple thumb-printing of ballot papers and ballot stuffing contained in the Petition, the Voters’ Registers used in the election, the Result Forms and the INEC Data Base of the Registers are very crucial to the proof of the allegations. They argue that, the 3rd Respondent, having failed or refused to produce these documents, the Court is not in a position to say what effect the documents/materials would have had on the outcome of the case, and so the Appellants’ pray for an order of retrial. They rely on Xtoudos Services Nigeria Ltd. V. Taisei (W.A.) Ltd. (2006) 6 SC200 at 216 – 217.

In responding to these submissions, the 1st Respondent referred to paragraph 22 of the Petition where the Appellants had stated their intention to rely on a “Special Direct Data Capturing Machine” whereas this was not itemized in the record of list of documents to be relied upon supplied by them at pages 77 – 78 of the record. In spite of this, the 1st Respondent, in paragraph 28 of her reply to the Petition, denied any knowledge of such Direct Data Capturing Machine and instead gave the Petitioners notice to produce same for inspection. 1st Respondent submits that there is no mention of any database in the Electoral Act, 2006 or in the Election Manual. She therefore invoked the Latin maxim of nemo dat quod non habet and referred to her denial of the existence of same in paragraphs 2, 27 and 28 of the 1st Respondent’s Reply and paragraph 2 of the 2nd Respondent’s Reply. 1st Respondent submits that the presumption in Section 149 (d) of the Evidence Act envisages that such a document is in existence. She however contends that in this case, the Appellants themselves are unsure of the document sought to be produced as can be seen by the various names ascribed to it, i.e. Data Capturing Machine or INEC Data Base. The Court, she argues, is therefore not in a position to presume the existence of any of them. Awoshile V. Shotumbo (1986) 3 NWLR (pt. 29) 471; Onwujuba V. Obiemu (1991) 1 NSCC 492 at 497.

In respect of the Voters’ Register, the 1st Respondent contends that INEC had duly informed the Tribunal as far back as 9th January, 2008 that the Register was available for collection by the Appellants upon payment for certification in line with Section 16 of the Electoral Act. A subsequent attempt by the Appellants to tender some documents, including a Voters’ Register, on the 5th February, 2008 failed on the ground that they were not certified, being public documents. This much was admitted by the Appellants’ Counsel at page 618 of the record. However, another attempt to tender 30 “back up Registers”, even though vehemently opposed, succeeded and these are in evidence as “Exhibit SEPT/4/07 REA1 – REA30”.

The 1st Respondent argues that since it is evident that the Appellants had in their possession secondary evidence of the Voters’ Registers, which they however failed to have certified as required by the Evidence Act, their failure cannot be visited on anyone. She submits that, being in possession of such secondary evidence and failing to tender same, the Appellants are caught by the decision in Buhari V. Obasanjo (Supra) and the Tribunal was right to have invoked same. 1st Respondent submits that a reading of Section 73 of the Electoral Act in conjunction with Section 16 reveals that INEC only has “official custody” rather than “exclusive custody” of the Register, as the Voters’ Register can be given to anybody or political party who/which requests for same upon payment for certification. In the same vein, by Section 75 of the Act, all agents of political parties were issued with the results of elections held at the Ward and Local Governments. She referred to Exhibits PE2, PE2B, PE2C, PE2D, PE2E, PE3 and PE4 which are results issued on Forms EC8A, EC8C and EC8E.

The 2nd Respondent, (PDP), in its Brief of Argument, contends that the Appellants were less than sincere when they allege that the 3rd Respondent failed to produce the electronic materials listed in the Subpoena. A comparison of the list of documents ordered to be produced at page 1372 of the record and the list of documents tendered before the Tribunal at pages 705 – 706 of the record shows that items 2, 3, 4 and 7 form part of the documents ordered by the Tribunal to be produced. The 2nd Respondent completely endorsed the finding of the Tribunal in its Judgment that the remedy open to the Petitioners in the circumstance of the non-production of the documents is not an invocation of the provision of Section 149 (d) of the Evidence Act, and thus relied on Buhari V. Obasanjo (Supra). It is submitted instead, that the Appellants ought to have fallen back to I secondary evidence as permissible under Sections 97(1) and 97(2) of the Evidence Act for those documents not produced pursuant to the Tribunal’s order. It is therefore submitted that this case did not present an appropriate opportunity for the invocation of the presumption under Section 149(d) of the Evidence Act.

The 3rd to 32nd Respondents’ submissions on this issue are virtually a replication of the submissions of the 1st Respondent. It would therefore serve no useful purpose to recapitulate same here. Suffice it to say that as the body and officers responsible for conducting the election, these Respondents reiterate, as they did before the Tribunal, that: