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.
Whether the Court of Appeal did not err in law and, thereby occasion a miscarriage of justice, when it failed to pronounce on the impropriety of the Tribunals decision expunging the chart contained in the Appellants final address by which only the lawful votes could be deducted from the unlawful votes and the Tribunals decision refusing to attach any weight to the evidence elicited by the Appellant in cross-examination of the few witnesses called by the Respondents on the ground that the witnesses were not makers of the documents with which they were confronted. – Grounds 14 and 15 of the Notice of Appeal
Whether the Court of Appeal was not wrong when it failed to make a finding that the Appellant was elected and ought to have been returned as elected in the Adamawa State Governorship election held on 4 February, 2012. – Ground 16 of the Notice of Appeal. ‘
The seven issues formulated in the 1st and 2nd Respondents joint brief 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 – PW65 on the ground that the evidence of those witnesses constituted hearsay evidence in that the witnesses jailed 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 GROUNDS 2 AND 3 OF THE GROUNDS 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 Appellant 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 4, 5, 6 AND 15 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 PW66 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 ac-knowledge superior to that of the judges of the Tribunal and that his evidence constituted inadmissible opinion evidence. (ARISING FROM GROUNDS 8, 9, 10, 11, 12 AND 14 OF THE GROUNDS OF APPEAL)
Whether their Lordships of the court below were right in upholding the decision of the Tribunal that the appellant could have compelled the attendance of the subpoenaed witnesses through legal process or apply for the certification of the secondary electoral documents in order to prove their case by tendering same through witnesses as provided under section 105 of the Evidence Act, 2011 and that their failure to do so could not avail them any advantage. (ARISING FROM GROUND 1 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 Appellant had no evidential value on the ground that they were dumped on the Tribunal not having been tied or related to the Appellants case through witnesses. (ARISING FROM GROUND 13 OF THE GROUNDS OF APPEAL)
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. (ARISING FROM GROUND 16 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 – PW65 or whether they did not after and due consideration. (ARISING FROM GROUND 7 OF THE GOUNDS OF APPEAL) ‘
The eight issues distilled in the 3rd Respondents brief for the determination of the appeal are thus:-
‘1) Whether their Lordship of the Court of Appeal were right in holding that the Applicant (sic) could have compelled the attendance of the subpoenaed witnesses through Legal process or apply for the Certification of the Secondary electoral documents in order to prove its case by tendering same through witnesses as provided under Section lot of the Evidence Act 2011. (Ground of the Notice of Appeal.
2) Whether the written deposits (sic) filed by the appellant witnesses constituted hearsay evidence in that the Appellants witnesses did not distinguish between what they saw themselves and what they alleged they were told by the polling agents or to call them as witnesses affected the weight to be attached to the depositions as held by the learned Judges/Justices of the tribunal and the Court of Appeal respectively. (Ground 2, 3 and 7 of the Notice of Appeal).
3) Whether the learned Justice (sic) of the Court of Appeal were right in rejecting the Evidence of PWBB(sic) and the other electoral documents, tended (sic) from the bar by counsel to the Appellant on ground that they were dumped to the Tribunal (Ground 13).
4) Whether their Lordship (sic) of the Court of Appeal were right when they held that it is only when the Appellant prove the allegations made in the petition that the respondents are entitle to call evidence in rebuttal (Ground 6 of the Notice of Appeal).
5) Whether the learned Justices of the Court of Appeal were right when they upheld the decision of the trial count that the Evidence of irregularities or acts of non-compliance alleged in the petition and whether the exhibit P760-771 tendered through the PW66 are inadmissible in Law. (Grounds 8, 9, 10, 11 and 12 of the Notice of Appeal.
6) Whether their Lordships of the Court of Appeal were right in holding that the allegations contains (sic) in the petition were Criminal in nature and are implicitly intertwined thereby holding that the doctrine of Severance is not applicable to the appellants petition. (Grounds 4 & 5 of the Notice of Appeal.)
7) Whether the alleged Failure by the learned Justices of the Court of Appeal to declare the Appellant Elected and returned in the Election occasioned a failure of Justice. (Ground 16 of the Notice of Appeal).
8) Whether the alleged Failure by the learned Justices of the Court of Appeal to make pronouncement on the chart in the final Address of the Appellant and or evidence elicited during cross-examination of the respondents witness (sic) occasioned a failure of justice. (Grounds 14 and 15 of the Notice of Appeal).’
Appellants first issue has been responded to by the 1st and 2nd Respondent under their 4th while the 3rd Respondents reply is under its 1st issue.
On Appellants first issue, its counsel Dr. Banire contends that the lower courts finding at pages 3955 – 3958 affirming the tribunals holding is wrong. It is incorrect for the tribunal and the court below to hold that the Appellant has failed to ensure that the 5th Respondent who has been subpoenaed to produce the original of the documents has so complied and that the Appellant has further failed to tender the certified true copies of the electoral documents. The record available to the two clearly shows otherwise as the Appellant has tendered the said documents from the bar. The documents, Exhibits P1 to P773, learned counsel submits, include all the voters registers, Forms EC8A, ballot papers and all others in respect of which the Appellant obtained an order to inspect and which PW66 inspected and testified upon after adopting his statement in court.
Concluding, learned counsel submits that rather than wrongly castigate the Appellant, the tribunal and the court below should have invoked Section 167 (d) of the Evidence Act 2011 to weigh 5th Respondents refusal against the Respondents. The learned counsel urges that the issue be resolved in their favour.
Responding, learned Senior Counsel to the 1st and 2nd Respondents relies on Buhari Vs Obasanjo (2003 17 NWLR (part 850) 587 at 635 and submits that Appellants first issue as well as the ground of Appeal from which the issue arises are incompetent and same should be discountenanced. The statement of the tribunal the Appellant seeks to attack by its first issue is an orbiter which cannot be appealed against. Further relying on Buliari Vs Obasanjo (2005) ALL FWLR (273) 1 at 76 and Uzoho Vs Jask Force, Hospitals Mgt (2004) 5 NWLR (part S67) 627 at 642, learned senior counsel contends that the tribunals observation the lower courts affirmation of the observation being attacked under Appellants first issue cannot be faulted as it correctly reflects the state of the law. Appellants failure to take the option available to it in proving its case is evidently fatal as the tribunal and the court below rightly observed. The issue, learned senior counsel submits, does not avail the Appellant.
Similar arguments have been advanced by learned counsel to the 3rd Respondent in urging that Appellants first issue be resolved against the Appellant.
Appellant has made a very feeble suggestion in its reply that we discountenance Respondents argument on the competence of its first issue and the ground of Appeal from which it has arisen. It is urged that since learned Respondents counsel have failed to demonstrate what makes the issue and the ground of Appeal from which the issue arises incompetent, their submission in that regard should be ignored. Beyond this plea, further arguments in the reply brief tend to reargue Appellants first issue which the law does not allow.
Now, Section 246 (1) (c) (ii) of the 1999 Constitution (as amended) which creates Appellants right of appeal and confers the court below the jurisdiction to determine the appeal provide as follows:-
‘246 (1) An appeal to the Court of Appeal shall lie as of right from
(c) Decisions of the Governorship Election Tribunals, on any question as to whether –
(ii) any person has been validly elected to the office of a Governor or Deputy Governor. ‘
The forgoing Section confers the Appellant the right to appeal to the court below only against the ‘decisions’ of the tribunal in respect of issues raised in its petition. Section 318 of the same Constitution defines the word ‘decision’ ‘unless it is expressly provided or the context otherwise requires’, to mean in relation to a court:
“any determination of that court and includes judgment, decrees, Order, Conviction or recommendation ‘
Learned Respondents counsel particularly rely on a passage in Buhari V Obasanjo (supra) where this Court per Belgore JSC (as he then was) defines an orbiter dicta to insist that the Appellants first ground of Appeal and the first issue that arises from the ground are incompetent. His take is that the right of appeal against an orbiter dicta does not enure to a party.
The part of the decision of the tribunal considered by the court below at page 3955 – 3958 of Vol. VIII of the instant appeal is to be found at page 3652 – 3653 of the same volume hereunder reproduced for ease of reference:-
‘We digress here to express our total sympathy with the Petitioners particularly as it relates to the conduct of the 5th Respondent, whom we subpoenaed twice to produce original electoral materials and to testify on behalf of the petitioners hut who failed to turn up
Be that as it may the Petitioners are not without a remedy as suggested by learned senior counsel to the 4th , 5th and 6th Respondent. They can 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 as provided by Section 105 of the Evidence Act. Surprisingly, the Petitioners did not pursue either of the two remedies. We also note the fact that the Petitioners could have also commenced proceedings against the 5th Respondent under section 77 (1) and (2) of the Electoral Act. 2010 (as amended)… ‘ (Underlining supplied for emphasis).
The question to answer is whether the court below has the jurisdiction to entertain and pronounce on Appellants complaint in respect of the foregoing aspect of the tribunals judgment. I agree with learned counsel for the Respondents that the aspect of the tribunals judgment the Appellant purports to appeal against in ground 1 of its Notice of Appeal and articulated in its first issue, not being the ‘decision’ of the tribunal, by the combined operation of Sections 246 and 318 of the 1999 Constitution (as amended), is not appealable. Certainly the tribunals dicta given at the judgment stage could not have been a recommendation as Appellant was not in the position to implement the recommendation at that late stage with proceedings having already closed. Learned counsels reliance on the decision of this court in Buhari V Obasanjo (supra) is apposite. The lower courts determination of the issue put before it by the Appellant having proceeded in the absence of the necessary jurisdiction being a nullity cannot create a further right of appeal to this Court. See Salami V Mohammed (2000) 9 NWLR (part 469 and Adesonoye V. Adewole (2000) 9 NWLR (part 671) 127
Learned counsel to the Respondents are equally right that were Appellants 1st ground and the issue distilled from it to be competent, both the tribunal and the court below have correctly stated the options available to the Appellant in law, following the refusal of the 5th Respondent, inspite of the tribunals subpoena on him, to produce the documents the Appellant relies upon to prove its case. It is for the Appellant to move the tribunal to compel the 5th Respondent to comply with the tribunals order or, in the alternative, tender the certified copies of the very documents the 5th Respondent refused to produce. See Buhari V Obasanjo (2005) ALL FWLR (part 273) 1 at 76, and Uzoho V Tsk Force, Hospitals Mgt (supra) at 642 – 643.
One remains at a loss what the Appellant in the instant case which asserts that it has tendered from the bar all the documents the 5th Respondent refused to produce, seeks to attain by its incompetent grudges anyway. Assuming without conceding that these grudges are competent and the Appellant has not exploited the options the tribunal and the court below rightly state are open to it, 1st and 2nd Respondents election cannot, on the authorities, be nullified on the basis of 5th Respondents failure to produce the required documents. See Buhari V Obasanjo (supra).
Having found Appellants Ground 1, the issue distilled from it as well as the arguments proffered on the issue incompetent, all are hereby struck out.
I take the liberty to now consider Parties fortunes under Appellants 2nd and 4 issues.
Appellants grouse under its 2nd issue for the determination of the appeal is on the probative value ascribed on the statements of PW1 – PW65, by the tribunal at page 3916 to 3917 of Vol. VIII of the record of appeal as further affirmed by the court below in its judgment at pages 3654 – 3656 of the same volume. The submissions of counsel under the issue may be summarised as follows:-
(I) that the rejection of the sworn statements of the particularly of twenty two of witnesses because of the uniformity in the content of the three paragraphs therein is enthronement of technicality by the tribunal as well as the court below in a period when the emphasis is on doing substantial justice: the courts placed emphasis on form rather than the substance of the depositions in rejecting them;
(II) that the witnesses having performed the same function as Ward Supervisors of the Appellant on election day, each of them deposed to activities at the polling units under his ward and to that extent their statement would not have been the same.
(III) that the tribunal and the Court below failed to make allowance for the fact that one person recorded the depositions of all the witnesses.
(IV) that the tribunal and the court below misconceived the essence of a Jurat in rejecting the statements because the person who recorded the statements did not sign them as such;
(V) that the two lower courts employed extraneous issues to conclude that the truth of the statements have been compromised.
Relying on Fatumbi V Olunloye (2004) 6 – 7 SC 68. Edokpululu and Co. Ltd V Ohenhen (1994) 7 NWLR (part 358) 511 at 525; Djukpan V Ororuyorbe (1967) 1 ALL NLR 134 at 140 and Anyabunsi V Ugwunze (1995) 6 NWLR (part 401) 225 at 272, learned Appellant counsel prays that this Court interferes with the lower courts wrong affirmation of the ascription of probative value on the statements of PW1 – PW65 by the tribunal.
Particularly arguing their 4 issue, learned Appellant counsel Dr. Banire contends that the testimony of PW1 – PW65 are direct evidence of what they saw, heard or perceived in the course of supervising the polling agents at the various units where the malpractices the Appellant alleges in its petition took place. Their testimonies cannot be regarded as hearsay as defined by this Court in FRN V Usman (2012) 8 NWLR (part 1301) 141 at 160.
The fact that they are ward supervisors, counsel further contends, does not, on the authorities, disqualify them from giving evidence. The exclusion of these witnesses and the further insistence by the court below that only polling agents are helpful to the Appellant works injustice for the Appellant. Learned counsel refers to the decisions in Ngige V Obi (2006) 14 NWLR (part 999) 233; Contract Resources Nig Ltd V Wendcr (1998) 5 NWLR (part 549) 243; Omorinbola II V Mil Governor Ondo State (1995) 9 NWLR (part 418) 201 at 221 and Lasun V Awoyemi (2009) 16 NWLR (part 1168) 513 at 553 and insists that PWI -PW65 are competent witnesses and the quality of their evidence is as high as the one deposed to by polling agents can possibly be. Once the witnesses are seen to be at the scene of events their evidence does not require corroboration for it to be acted upon. Further relying on Aregbesola V Oyinlola (2011) 9 NWLR (part 1253) 458 at 57; Akingboye V Salisu (1999) 7 NWLR (part 611) 434; Jolayemi V Alaoye (2004) 12 NWLR (part S87) 322 learned counsel submits that the two lower courts have erred in their findings on PW1 – PW65.
Not unexpectedly, learned senior counsel Agabi for the 1st and 2nd Respondents and Egwuonwu for the 3rd Respondent have vehemently opposed Appellant counsels contentions in their individual responses. Whereas the 1st and 2nd Respondents argued their 1st and 7th issues, the 3rd Respondent argued their 2nd and 4 issues in response to the Appellants arguments pertaining its 2nd and 4th issues.
Both counsel defend the resolve of the two courts not to ascribe any probative value to the uniform statements of PW1 – PW65 which, it is argued, were given in languages other than the one in which the statements are recorded. Some of the witnesses in adopting their statements at the tribunal, orally told the court also that though they only spoke and understood Hausa language, their statements were recorded in English language without any indication that after the recording the statements had been read to them and that they understood. Most surprisingly, even those who could read and speak English, learned counsel contend, were not allowed to record their own statements themselves. The lower courts, it is argued, giving these fundamental defects in the statements, are right in the inferences they drew from and the probative value they ascribed to the statements.
The inferences cannot, on the authority of Yusuf V Obasanjo (2003) 6 SC (part II) 156; Okereke V Yaradua (2008) 12 NWLR (part 1100) 95 AT 118; Ojukwu V Yaradua (2009) 12 NWLR (part 1154) 50 at 114, counsel submit, be faulted. Further relying on the foregoing authorities and Adesoye V Adewole (2006) 27 NSCQR783 at 800-801, Jadola V Regd Trustee of Land SCM (2006) 4 NWLR (part 968) 159 at 168 – 169 and Chukwuma V Nwoye (2011) ALL KWLR (part 553) 1942 at 1947, learned Respondents counsel submit that by allowing Appellants petition take off at all, the two lower courts have been too lenient. The statements of PW1-PW65 and indeed PW66 are defective. The electoral Act requires that the petition be filed along with valid statements. Where the Statements filed along with the petition are detective, counsel insist, the tribunal and the court below with such a pre-condition not being met would be without the necessary jurisdiction to take cognizance of the petition.
Finally on the issues, learned Respondents counsel submit that PW1-PW65 are ward supervisors yet Appellants Petition centres on activities at the designated polling units. PWI-PW65 were hardly at these polling units and indeed, all of them, both in their statements and under cross-examination told the courts that they got the facts they are testifying to from the various hilling Agents. The court below is right, submit counsel, in its affirmation of the tribunals rejection of the evidence of these witnesses when the polling agents, the source of the facts the witnesses are testifying to, have neither further testified nor are the reports the agents allegedly made to the witnesses placed before the courts. Learned counsel rely on Hasidu V Goje (2003)15 NWLR (pt.843) 352, Buhari V Obasanjo (supra) and Agballah V Sullivan Chime (2009) 1 NWLR (part 1122) 373 at 433 – 434 in support of their submissions. In urging that the issues be resolved against the Appellant.
Now, ones immediate reaction to the arguments proffered by both sides to the appeal, for now, on Appellants 2nd issue for the determination of the appeal, is to ask what brought about the tribunals findings complained about and affirmed by the court below. The question the tribunal asks itself and in the bid to answer which it makes the findings the Appellant contends erroneous under the issue is at page 3654 – thus:-
‘The question begging for answer is, has the petitioner satisfied the tribunal that the non-compliance has so affected the result of the election to warrant us nullify same? ‘
It is in answering the forgoing, that the tribunal supposedly erred firstly thus:-
‘All the 65 witnesses who testified on various allegations of malpractices resulting in non-compliance are ward supervisors. We noted one common feature in their entire witnesses statements on oath. That is, the 3 paragraphs that are repeated in all 65 depositions, which are: 1. my responsibility as ward collation agents is to supervise and coordinate ail the activities of the polling agents in the polling units and ward and monitor election results at the polling units and wards level during collations.
The second paragraph that is the recurring decimal in the petitioners witness deposition reads:
On the aforesaid day of the election I moved from one polling unit to another to coordinate and monitor the polling units. Also, each polling unit in my ward has a polling agent who reported to me accurately.
The third paragraph ‘A-part from my personal knowledge of these events when I visited the polling units in the ward I also received written reports from the polling agents in all the polling units in the ward. Based on the event I personally witnessed and the reports of the polling agents forwarded to me, the election under contest in these units were not free and fair. ‘
And then thus:
‘Another irritatingly repetitive item most, of the witnesses statement on oath of petitioners witnesses is the illiterate jurat. Even witnesses who testified before us that they deposed to their witness statement in English language their deposition 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 one Sunday Mathew who is a lawyer.
Regarding the effect of the foregoing inherent defects in the statements of the sixty five witnesses on the Appellants bid to prove its case, the tribunal states as follows:-
‘This creates a distinct impression on our minds that the written deposition(s) were haphazardly mass-produced and names of witnesses, units, wards, and local government inserted.’
And because of this, the tribunal concludes at pp 3655 that the statements:-
“…Lack the well known individuality and distinction required of a legal deposition, which affects the weight we attach to them and we so hold’ (Underlining for emphasis).
SC. 409/ 2012