Action Congress Of Nigeria Vs Sule Lamido & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C.

On Friday 10th Day of February, 2012, I delivered my judgment in this appeal in which I dismissed the Appellant’s appeal and further affirmed the judgment of the Court of Appeal which affirmed the decision of the Governorship Election Petition Tribunal sitting at Dutse, Jigawa State which dismissed the Appellant’s petition on 24th October, 2011. I did say on that day that I shall give my reasons for the judgment today. I now proceed to give my reasons.

The Appellant in this appeal as petitioner had challenged the election and return to the 1st Respondent as the Governor of Jigawa State in the election conducted by the 3rd Respondent on 26th April, 2011. The Governorship Election tribunal of Jigawa State, after giving the parties a full hearing, dismissed the Appellant’s petition. Not satisfied with the judgment of the Tribunal, the petitioner/Appellant had appealed against that judgment at the Kaduna Division of the Court of Appeal which after hearing the Appellant and the Respondents, dismissed the appeal and affirmed the judgment of the Tribunal. Aggrieved by the decision of the Court of Appeal, the Appellant is now on a further final appeal to this Court on a Notice of appeal containing 16 grounds of appeal from which 9 issues for the determination of the appeal were formulated after abandoning grounds 7, 8 and 12 of the grounds of appeal from which no issue was formulated. Accordingly, grounds 7, 8 and 12 of the grounds of appeal having been abandoned, are hereby struck out. The issues as identified in the Appellants briefs of argument are –

“1. Whether the Court of Appeal was right when despite its findings a fact that the Appellant was only allowed to utilize nine (9) days of 14 (fourteen) days statutory allocated to it when on the 1st September, 2011 its case was closed and held that the Appellant was not denied its right to fair hearing.

2. Whether the Court of Appeal was right when it upheld the lower trial Tribunal decision refusing to grant the Appellant’s application to summon the INEC Commissioner or his representative to tender ballot papers used in the election and held that, that did not lead to denial of fair hearing.
3. Whether the Court of Appeal was not wrong in its conclusion that the rejection of All the ballot papers sought to be tendered was wrong when they had as a fact found that the Appellant has sufficiently satisfied the second limb of the provision of paragraph 4(5)(c) of the First Schedule having listed five Local Government Areas of Birnin Kudu, Gwaram, Ringim, Taura and Gwiwa in the Appellant’s Petition at the Tribunal.
4. Whether the approach adopted by the Court of Appeal leading to the conclusion that the production of Exhibit ‘B’ alone in evidence had shifted the burden of proving that the 1st Respondent was not educated up to at least School Certificate from the 1st Respondent, did not occasion miscarriage of justice.
5. Whether having found that Exhibit ‘B’ is a public document which is inadmissible under the meaning of Section 111 of the Evidence Act, the Court of Appeal could justify reliance on the Exhibit by following the decision in ONOBRUCHERE vs. ESEGINE (1986) 1 N.W.L.R. (Pt. 19) 799 to find in favour of the 1st Respondent’s qualification to contest election into the office of Governor of Jigawa State.
6. Whether the Court of Appeal was not wrong in its assessment and evaluation of Exhibit ‘D’ vis-a-vis the evidence of PW4 as a result of which it misplaced the evidence to the case of the Appellant regarding the qualification of the 1st Respondent to contest the Governorship election of Jigawa State.
7. Whether the Court of Appeal was not wrong when it held that lower Tribunal did not misdirect itself when it failed to examine Exhibits ‘E’ – ‘Z,’ Exhibits 1 – 36 as enjoined by the law.
8. Whether the Court of Appeal was not wrong in its assessment and evaluation of evidence of DW1 and DW2 and on the weight the lower Tribunal attached to their evidence even as tainted witnesses.
9. Whether the Court of Appeal was right when it held that the averments contained in paragraphs 18 and 19 of the Appellant’s petition filed at the Tribunal were not specific but nebulous.”

Although in the 1st and 2nd Respondents’ joint brief of argument 8, issues were identified from Appellant’s grounds of appeal while 6 issues were framed by the 3rd, 4th and 5th Respondents in their joint brief of argument from the same Appellants grounds of appeal, all the issues in the respective Respondents brief of argument have adequately captured and covered all the complaints raised by the Appellants in the 9 issues raised in the Appellant’s brief of argument for the determination of this appeal. I shall therefore deal with the issues as raised in the Appellant’s brief of argument which contained various fragments of complaints of the Appellant on the way and manner the trial Tribunal evaluated the evidence before it arrived at various findings culminating in its decision affirmed by the Court of Appeal that the Appellants had failed to discharge the burden of proof vested upon it by law to justify granting the reliefs sought by it in its petition.

The basis of the complaint of the Appellant as a petitioner at the trial Tribunal against the Respondents was that the 1st Respondent was, at the time of the election, not qualified to contest the Governorship Election conducted by the Independent National Electoral Commission on 26th April, 2011 in Jigawa State; that the 1st Respondent was not qualified to contest the election because he presented to the Independent National Electoral Commission a forged West African Examination Council Certificate No. C3005655 and that he did not attend the then Government College Zaria now Barewa College beyond Form 3 and as such did not possess the requisite qualification required by the 1999 Constitution to contest the election. It was also the case of the Appellant/Petitioner that the election of 26th April, 2011, which produced the 1st Respondent as the Governor of Jigawa State of Nigeria, was invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act, 2010 and Independent National Electoral Commission Manual for Electoral Officers. The corrupt practice, complained of by the Appellant in the election, include multiple thumb printing and vote rigging in that the 3rd, 4th and 5th Respondents wrongfully computed majority of lawful votes counted as cast for the 1st Respondent even though the said figures were altered and inflated and were products of artificial polling units.

At the trial of the Appellant’s petition before the trial Tribunal which followed a pre-trial conference, the Appellant called 5 witnesses in the course of the trial during which Exhibits A – Z and 1 – 36 were tendered and received in evidence. On 1st September, 2011, the trial Tribunal closed the case of the Appellant before the Appellant’s witness, the Registrar of the West African Examination Council upon whom a subpoena had been issued to attend and give evidence.

The 1st and 2nd Respondents opened their case or defence on the same day 1st September, 2011 and closed the same the following day 2nd September, 2011 after calling only 2 witnesses. However, the 3rd, 4th and 5th Respondents declined to call any witness at the trial at the conclusion of which the trial Tribunal came to the conclusion that the Appellant had failed to prove its case to qualify for being granted the reliefs sought in its petition and accordingly dismissed the petition to give rise to the Appellants appeal to the court of appeal and ultimately to this Court.

Although the real and infact only issue for determination in this appeal is whether or not on the averments contained in the petition and the evidence adduced before the trial Tribunal, the Appellant succeeded in proving its case against the Respondent to be entitled to the reliefs sought by it, I shall all the same examine the fragments of the sub-issues surrounding the required burden of proof under the law in order to arrive at appropriate decision in the interest of justice.

The first issue in the Appellants brief of argument is whether by the action of closing its case on 1st September, 2011, the trial Tribunal denied the Appellant its Constitutional right of fair hearing under Section 36(1) of the 1999 Constitution. It was argued for the Appellant that by closing its case one day before its vital witness could arrive from Lagos to give evidence on the 1st Respondent’s West African Examination Council Certificate being disputed, on a day when the Appellant had only utilized 9 days out of the 14 days allowed it by the Rules of the Court to present its case, the Court below was wrong in finding that the Appellant’s right of fair hearing had not been breached by the trial Tribunal; that under the circumstances in which the Appellant’s case was closed by the trial Tribunal, it cannot be said that the Appellant was not denied a fair hearing which being a Constitutional right, cannot be waived by a party as held in Elike v. Nwankwoala (1984) 12 S.C. 301; Mohammed v. Kano N.A. (1968) All N.L.R. 411; Unongo v. Aku (1983) 11 S.C. 129 and Ariori & Ors. v. Euno & Ors. (1983) 1. S.C.N.L.R. Learned Counsel concluded on this issues that the right of the Appellant to fair hearing having been breached by the trial Tribunal, the Court below erred in not setting aside that decision in the line with the decision in Ndukanba v. Kolomo (2005) All F.W.L.R. (Pt. 248) 1602 at 1614.

For the 1st and 2nd Respondents, it was contended that the closure of the Appellant’s case on 1st September, 2011 after the refusal of the trial Tribunal to issue a subpoena on the INEC Commissioner to produce and tender ballot papers and its refusal to grant further adjournment to the Appellant to call an official of WAEC who was on a subpoena to come and give evidence for the Appellant, did not amount to denial of fair hearing as found by the Court below. Learned senior Counsel referred to the list of witnesses which accompanied the Appellant’s petition which does not contain any name of WAEC official and traced the record of the hearing of the petition which opened on 16th August, 2011 and closed on 1st September, 2011, and submitted that the Court below was right in finding that the Appellant was indeed given fair hearing as the maximum of 14 days allowed by Paragraph 41(10) of the 1st Schedule to the Electoral Act 2010 (as Amended) was exhausted on 29th August, 2011 to justify closing the case of the Appellant on 1st September, 2011. Citing and relying on the cases of Memorial Farms Ltd. Anor. v. Nigeria Agric & Co-operative Bank Ltd. & Anor. (2008) 12 N.W.L.R. (Pt.1098) 412 at 427 and T.M. Orugbo & 3 Ors. v. Bulama Una (2002) 16 N.W.L.R. (Pt.792) 175 at 206, learned senior concluded that going by the record of appeal, the Court below was right in its decision that the Appellant’s right of fair hearing under Section 36(1) of the 1999 Constitution had not been breached by the trial Tribunal.

As for the 3rd, 4th and 5th Respondents in their joint brief of argument, their learned Counsel also took the same stand as was taken by the 1st and 2nd Respondents in their joint brief of argument. Pointing at the decision of the trial Tribunal at pages 811 to 812 of the record of the appeal, learned Counsel stressed that having regard to the opportunity given to the Appellant to call witnesses to prove its petition, the complaint of the Appellant of an alleged denial of fair hearing is not supported by the record and therefore urged this Court to resolve the issue against the Appellant particularly when the case of Newswatch Communication Ltd. v. Attah (2006) 12 N.W.L.R.(Pt.993) 144 at 170 – 170, is taken into consideration. The complaint of the Appellant in this issue that the trial Tribunal denied it its Constitutional right of fair hearing as enshrined in Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria is certainly not born out of the record of the trial Court. The Appellant which opened its case on 16th August, 2011, had its full time of 14 days prescribed under paragraph 41(10) of the 1st Schedule to the Electoral Act 2010 as amended to prosecute its case closed by the trial Tribunal on 1st September, 2011. It is quite clear from the record of appeal, as rightly found by the Court below, that the Appellant was given ample opportunity to present its case by being given several adjournments by the trial Tribunal to enable it call its witnesses, particularly the official of WAEC whose absence at the various dates shown on the record, could not be explained by the learned Counsel to the Appellant before its case was closed on 1st September, 2011. The Court below was therefore right, in my view, in finding that the trial Tribunal not only created conducive atmosphere or environment for the Appellant to enjoy its right of fair hearing but also gave the Appellant adequate time allowed by law to prove its case at the hearing. Hence, the Appellant having failed to utilize the opportunity given by the trial Tribunal to fully enjoy its right of fair hearing in the course of prosecuting its petition, the Appellant cannot now be allowed to turn round to accuse the trial Tribunal of denying it that right. I find support in the decision of this Court in the case of Newswatch Communication Ltd. v. Atta (2006) 12 N.W.L.R. (Pt.993) 144 at 170 – 171. Accordingly, this issue on the allegation of denial of fair hearing, must be resolved against the Appellant.

The second issue in the Appellant’s brief of argument also relates the same complaint of denial of fair hearing as raised in the first issue just resolved. The only exception is that the complaint of denial of fair hearing in this second issue is tied to the alleged refusal of the trial Tribunal to grant the Appellant’s application to summon the INEC commissioner or his representative to tender ballot papers used in the conduct of the election. This issue is not at all supported by the record of appeal as found by the trial Tribunal and affirmed by the court below. This is because the failure of the Appellant to accompany its petition with copies or list of every document to be relied on at the hearing of the petition, which in this case include the said ballot papers in line with requirements of paragraphs 4(5)(c) and 41(8) of the 1st schedule to the Electoral Act 2010, as amended, was mainly responsible for the refusal of the trial Tribunal to admit the documents in evidence. No complaint of denial of fair hearing at all shall arise from the facts revealed on the record. This second issue like the first one must also fail.

The third issue is whether the court of Appeal was not wrong in its conclusion that the rejection of all the ballot papers sought to be tendered was not wrong when they found as a fact that the Appellant has sufficiently satisfied the second limb of the provision of paragraph 4(5)(c) of the 1st Schedule with the listing of five Local Government Areas of Birnin Kudu, Gwaram, Ringim, Taura and Gwiwa in the Appellant’s petition. The Appellant has argued on this issue that it had complied with sub-paragraph (5) of paragraph 4 of the 1st schedule to the Electoral Act 2010 as amended to have been entitled to the indulgence of the trial Tribunal in receiving the bailout papers in evidence.