Alhaji A. B. Saadu & Anor V. Hamed Giwa Afolabi & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIMA CENTUS NWEZE, J.C.A (Delivering the Leading Judgment)

On January 6, 2012, this court pronounced judgment in the above appeal. This, it did pursuant section 9 (8) of the Constitution of the Federal Republic of Nigeria (Second Alteration) Act (No 2) of 2010. The court promised to adduce reasons in support of the judgment at a later date. We now do so.

The third respondent herein conducted elections into the Kwara State House of Assembly in respect of the Afon Constituency on April 26, 2011. It declared the first respondent winner of the said election. Dissatisfied with that declaration, the appellants beseeched the National and State House of Assembly Elections petitions Tribunal, Kwara State (hereinafter simply referred to as the tribunal) with a petition against the election and return of the first respondent as aforesaid.

At the close of the case, the tribunal dismissed the petition in its judgment dated November 13, 2011. Aggrieved by the outcome of the petition, they have appealed to this court. They formulated three issues for the determination of this appeal, viz:

1. Whether the tribunal was right to have held that the appellants’ evidence did not cover and or prove the irregularities alleged in the petition in some polling units and wards:
2. Whether the appellants proved their allegations of irregularities on the basis of the evidence before the tribunal contrary to the tribunal’s holding that the appellants merely drawn (sic) inferences from some areas:
3. Considering the averments in the petition, was the tribunal right in holding that the appellants’ petition did not state the particulars of corruption and irregularities?

The first and second respondents, equally, set out three issues for the determination of this appeal, [paragraph 4.0; see, also, paragraph 3.0 of the third respondent’s brief]. We have perused all the issues. We take the view that the issues formulated by the appellants are sufficient for the determination of this appeal. After all, it is their appeal. We shall take them seriatim.

ISSUE ONE

Counsel for the appellants observed that the appellants alleged that there were irregularities. They presented evidence that covered these irregularities. They called four witnesses who were Ward Collation Agents/Ward Supervisors, citing Aregbesola v Oyinlola (2011) 9 NWLR (pt 1253) 458. He urged the court to accord their evidence full evidential value, Obinwanee v Tabansi-Okoye (2006) 8 NWLR (pt 981) 104; Lasun v Awoyemi (2009) 16 NWLR (pt 1168) 513. He maintained that the appellants presented oral and documentary evidence that covered the allegations that the first respondent did not score majority of lawful votes and that there were irregularities and non-compliance with the Electoral Act, [paragraphs 13-16 of the brief]. He urged the court to invoke its section 15 powers, [paragraphs 11-20 of the brief].

He, further, submitted that they elicited evidence from the respondents’ witnesses under cross examination to cover the allegations, [paragraphs 22-26 of the brief]. In further support of his contention in respect of non-compliance, counsel drew attention to Chapter 6 of the Election Manual for Officials, 2011 and urged the court to take judicial notice of the said Manual as a subsidiary enactment, [paragraphs 27-37 of the brief].

Attention was drawn to the two requirements that must be satisfied before any result may be confirmed as being substantially held in compliance with the Act, [paragraphs 40-43 of the brief].

The first and second respondents faulted the above arguments on two principal grounds. In the first place, it was pointed out that although the appellants had raised substantial allegations in respect of the Governorship elections under paragraphs 11 (4)-(28) of the petition, PW1-PW4 gave evidence in respect of the House of Assembly elections relating to Afon Constituency. Whatever testimonies were, therefore, adduced in respect of the said allegations must go to no issue, citing Abubakar v Yar’ Adua (2009) 5 EPR 123.

Counsel explained that only paragraphs 1-11 (3) of he petition were germane to the complaints against the election. Even then the pleadings in the said paragraphs fell short of the requirements of paragraph 4 (1) (d) of the First Schedule to the Electoral Act. Many cases were cited in support.

Worst still, the testimonies of PW1- PW4 were limited to seven polling units, [paragraph 5. 9 – 5. 12 of the brief]. Even then, their testimonies were anchored on criminal allegations: allegations of thuggery; violence etc, offences under the penal Code and the Electoral Act. Again, many cases were cited in support of the contention.

On the one hand while it was contended that the testimonies of the above witnesses failed to establish the required standard, their testimonies in respect of the said offences did not sufficiently link the first and second respondents or their agents with the said offences, paragraphs 5.15-5.16 of the brief].

Counsel opined that in a civil case, it is only when the appellants have succeeded in establishing their petition that the need for the respondents to defend to petition would arise. They cited many cases in support of the contention. Above all, to succeed in an election petition, a petitioner has a duty to prove, by credible evidence, that the corrupt practices and acts of noncompliance with the Electoral Act are pervasive or substantial enough to have substantially affected the conduct of the election or the result of the election, [paragraphs 5 .21-5.37 of the brief].