Alhaji (Dr) Aliyu Akwe Doma &anor Vs. Independent National Electoral Commission (Inec) & Ors (2012)
LAWGLOBAL HUB Lead Judgment Report
J. A. FABIYI. JSC
This is an appeal against the judgment of the Court of Appeal; Markurdi Division delivered on 7th January, 2012 in which the majority decision of the trial Tribunal handed out on 12th November, 2011 was in essence affirmed. The main appeal was dismissed while the cross appeal was allowed in part.
It is apt to assemble the facts leading to this appeal, albeit, brieflyn 26th April, 2011, the 1st respondent conducted election into the office of Governor of Nasarawa State. After the completion of the election the 4 respondent who was the candidate of Congress for Progressive Change (CPC) was declared as winner and returned as duly elected.
The 1st appellant who contested on the platform of the 2nd appellant – Peoples Democratic Party was not happy with the outcome of the election. The 1st appellant and his party jointly filed a petition before the trial Tribunal in Lafia, Nasarawa State on 17th May, 2011. The 1st, 2nd and 3rd respondents filed a joint reply. The 4th respondent, as well as, filed his own Reply.
The appellants in their petition before the trial Tribunal maintained that the election was conducted peacefully, freely and fairly in the nine (9) Polling Units of Laminga Electoral Ward and Oshugu Polling Unit of Loko Electoral Ward of Nasarawa Local Government Area and in Anna Town Polling Unit of Alagye Ward of Doma Local Government Area during the stated election but the 1st, 2nd and 3rd respondents unjustly excluded and / or refused to include the results and discountenanced the results from the above stated units and wards. Another ground of note for the petition relates to multiple thumb printing, ballot stuffing, over voting and inflation of results leading to non-compliance with the provisions of the Electoral Act, 2010 (as amended).
The respondents maintained that the exclusion of results in the stated polling units and wards was justified in that results of election in the affected polling units and wards were cancelled because thugs threatened violence on the respective presiding officers and other electoral officials during the election.
The 4th respondent at the trial Tribunal objected to some votes credited to the appellants by the 1st, 2nd and 3rd respondents in three Local Government Areas of Doma, Kokona and Obi in Nasarawa State.
The trial Tribunal considered the evidence placed before it and was duly addressed by all senior counsel for the parties after written addresses were duly filed. In its considered majority judgment of 12th November, 2011, the petition was dismissed. The 4th respondents objection to votes was also dismissed. The appellants appealed to the Court of Appeal against the dismissal of their petition. The 4th respondent cross-appealed against the part of the decision which overruled his objection to votes credited to the appellants in the above stated Local Governments. At the Court of Appeal, the appellants appeal was dismissed while the 4th respondents cross-appeal was allowed in part. This is a further and final appeal by the appellants to this court.
In this court, briefs of argument were filed and exchanged by senior counsel for the parties. On 27th February ,2012 when this appeal was heard, each learned senior counsel for the parties adopted and relied on the brief of argument filed on behalf of his client. Each senior counsel made submissions galore in a keenly contested petition which was based on a closely contested election with a near photo finish end result.
On behalf of the appellants the eight (8) issues formulated from the 21 grounds of appeal in their Notice of Appeal read as follows:-
‘(1) Whether on a proper consideration of ground 8 of the appellants Ground of Appeal (in the Notice of Appeal to the Court of Appeal) and the dismissal of the 4th respondents preliminary objection against the appeal on the ground that the same was unfounded, the lower court was right in its decision striking out that ground 8 . Ground 1.
(2) Whether having regard to the different issues raised by the appellants appeal in the lower court relating to various errors of law committed by the Tribunal, the lower court properly reduced the issues to a matter of proof and standard of proof thereby leaving other issues unconsidered and unresolved and whether in all the circumstances of the appeal, it can be said that the lower court did justice to the appeal of the appellants – Grounds 2, 8, 20 and 21.
(3) Whether the lower court was right when it held that P.W.14 and P.W. 44 were justifiably discredited by the Tribunal without showing what evidence they relied on for that holding – Ground 3.
(4) Whether having regard to the materials on record including, inter alia, the pleadings, the evidence, the issues raised in the appeal at the lower court, the submissions of the parties and relevant law, it can be said that the lower court gave proper consideration to the evidence of P.W.40 and the other witnesses called by the appellants -Ground 4, 5, 6 and 7.
(5) Whether the lower court has not denied the appellants/cross-respondents fair hearing by deciding the cross-appeal without any consideration of the appellants/cross-respondents brief against same and whether in the circumstances the decision of the lower court can be allowed to stand – Grounds 9 and 13.
(6) Whether having regard to the pleadings of the parties, the evidence on record and the submissions on the issues raised in the appeal before the lower court, the court below is right in overruling the Tribunal on the results of Oshugu and Anna Town Polling Units – Grounds 10, 14 and 15.
(7) Whether the lower court was right in resolving issue 3 of the cross appeal against the appellants on grounds not covered by cross-appeal and not canvassed by the parties – Ground 11; and
(8) Whether in view of the pleadings of the cross-appellants (sic) on the votes objected to in Doma, Kokona and Obi Local Government Areas treated by the lower court as ground 5, which raised criminal allegations, the pleadings of the cross-respondents on same, the evidence on record, the failure of the 4th respondent to prove the allegations beyond reasonable doubt as required by law, and failure of the lower court to consider the submissions of the cross-respondent on same, the lower court can be held in the circumstances to have properly considered the objection to the votes and whether justice has been done to the appellants/cross-respondents – Grounds 12, 16, 17 and 18. ‘
On behalf of the 1st, 2nd and 3rd respondents, similar with slight modification in tone were submitted for determination as those reproduced above for the appellants. I shall not reproduce them to save time and space.
On behalf of the 4th respondent the six issues distilled for the determination of the appeal are fairly different. They read as follows:-
‘(1) Considering the entirety of the decision of the lower court, whether the lower court was right in striking out ground 8 of appellants Notice of Appeal – Ground 1.
(2) Whether the lower court was not correct in dismissing the appeal before iton the basis that appellants did not prove their entitlements to the reliefs being sought and whether proof qua evidence is not substantial enough to influence the decision of the court one way or the other -Grounds 2, 8, 20 and 21.
(3) In view of the totality of the evidence presented at the lower court, including those of P.W.14, P.W.44 and P.W.40, whether the lower court was not right in affirming the decision of the trial Tribunal – Grounds 3, 4, 5, 6 and 7.
(4) Was the lower court correct to have allowed the respondents cross-appeal with respect to its objection to votes in Doma, Kokona and Obi Local Government? Grounds 9, 13, 12, 16, 17 and 18.
(5) Whether this appeal presents sufficient reasons in fact and law to set aside the decision of the lower court in respect of the result of Oshugu and Anna Town Polling Units – Grounds 10, 14 and 15.
(6) Whether the lower court rightly resolved issue 3 in the respondents brief before it – Ground 11.’
I shall consider this appeal based on the issues formulated by the appellants which are basically the same with those couched on behalf of the 1st, 2nd and 3rd respondents.
Issue one relates to the propriety of the decision of the Court of Appeal in striking out ground 8 of the Grounds of Appeal before it. Senior counsel for the appellants maintained that the reasoning of the court below is untenable as it is totally foreign to the preliminary objection of the 4th respondent who did not say that no error of law was stated and that there was no nexus between particular 1 and the main ground. He felt that the appellants were not afforded a hearing on that ground before the court arrived at its conclusion. He submitted that a court should not descend into the arena of conflict to make a different case for the parties. He cited Fagbenro v. Arobadi (2006) 7 NWLR (Pt. 978) 172 at 173; A.G.
Leventis Nigeria Pic v. Akpu (2007) 17 NWLR (Pt. 1063) 416.
Senior counsel for the 1st, 2nd and 3rd respondents submitted that in a situation where particulars furnished in support of a ground of appeal are not related to the ground,it should be struck out. He cited Honika Sawmill (Nig.) Ltd. v. Hoff (1994) 2 NWLR (Pt. 326) 252 at 262 A-D. Senior counsel further submitted that where a ground is vague or general in terms or discloses no reasonable ground it can be struck out by the court on its own motion or on application by the respondent. He referred to Order 6 Rule 3 of the Court of Appeal Rules 2011 and cited the case of Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285 at 296 F-G.
Senior counsel for the 4th respondent observed that the appellants did not present any argument to the effect that the reasons stated by the lower court were wrong. He maintained that what is germane in the determination of an appeal is the rightness or wrongness of the decision of the lower court. He cited Tukur v. Government of Gongola State (1998) 1 NWLR (Pt. 68) 39. He felt that the cases of Fagbenro v. Arobadi and Aderonmu v. Olowu cited by the appellants are of no moment to the facts of the case.
For a proper appreciation, it is necessary to quote Ground 8 of the Grounds of Appeal before the lower court along with its particulars.
‘Ground 8 – The Governorship Election Tribunal erred when they (sic) held that to prove the criminal allegations in the petition beyond reasonable doubt the petitioners must establish that the respondents particularly the 4th respondent committed these criminal acts personally or aided, abetted, or counselled or procured the commission of the alleged violations of electoral laws and rules and that an election or votes will not be nullified merely because a candidate benefited from alleged irregularities and/or malpractices.
PARTICULARS OF ERRORS IN LAW
(i) In holding as the Tribunal did, it failed to appreciate its jurisdiction to nullify results of elections in given units wards or local governments which are found to be unlawful and that would affect all contestants as have been done in several cases.
(ii) It was the holding under attack in this ground which prevented the tribunal from giving proper consideration to all the allegations pinpointing unlawful results.’
The Court of Appeal found that Ground 8 has no error of law stated and that there was no nexus between particulars (i) and the main ground. The appellants did not present any argument that the reasons stated by the lower court were wrong. The appellants felt that they were not heard by the lower court on the reasons given by it.
The court below was right when it found that particular (i) has no nexus with ground 8 which appears general in terms and vague. The same is liable to be struck out as done by the court below. See: Honika Sawmill (Nig.) Ltd. v. Hoff (supra) at page 262. Such a step which was taken can be done suo motu by the court or on the application by the respondent as provided by Order 6 Ride 3 of the Court of Appeal Rules, 2011 which states as follows:-
‘Any Ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted save the general ground that the judgment is against the weight of evidence, any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on application by the respondent.’
This court in a similar situation in the case of Nsirim v. Nsirim (supra) pronounced that the Court of Appeal is empowered upon application by the respondent or on its own motion to strike out any ground of appeal which discloses no reasonable ground of appeal.
The court below was right in the stance taken by it in striking out ground 8 of the Grounds of Appeal before it for being incompetent. The issue is resolved against the appellants.
In respect of issue 2, the senior counsel for the appellants maintained that the issue presents a classical example of abdication of statutory and constitutional responsibility of a court of law, especially a non-apex appellate court to consider each and every issue raised by an appellant or indeed all the parties in an appeal. Senior counsel felt that it was wrong for the lower court to have treated the appeal as one relating to evaluation of evidence touching on proof and standard of proof. He felt that issues agitated in the court below were not dealt with. He cited the cases of Lamulatu Shashi & Ors. v. Shadia Smith (2009) 18 NWLR (Pt. 1173) 330 at 366; Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) 519 at 537 and Paul Edem v. Cannon Balls Ltd. & Anor. (2005) 12 NWLR 27 at 54.
On behalf of the 1st, 2nd and 3rd respondents the senior counsel submitted that the summation of the 20 issues formulated by the appellants is actually that of proof and standard of proof. The real issue is whether the appellants have proved their case at the trial Tribunal.
Senior counsel for the 4th respondent maintained that the twenty (20) issues for determination formulated at the court below by the appellants give them away to the effect that their arguments are not candid because every single issue contains the word evidence and also relates to evidence. He felt that issue 2 should fail on this score.
I have carefully read over several times the twenty (20) issues presented by the appellants to the court below for determination. None of the parties can contest with clear mind that all the issues except perhaps issue 14 touch on evidence. The appellants senior counsel argued some issues together in one fell swoop. For example issues 11, 12, 13, 15 and 18 in the appellants brief at the lower court were argued together.
It is basic that in an election petition like the appellants own herein complaining of non-compliance with the Electoral Act based on electoral malpractices and fraud, once the issue of proof is resolved against a petitioner, the petition is effectively determined. The approach adopted by the lower court was dictated by myriads of issues which principally touch on evidence in respect of allegations touching on crime. I am unable to impugn the stance taken by the court below. I will not in any respect undermine the lower courts art or approach in the writing of its judgment.
See: Omotola v. The State (2009) 2-3 SC (Pt. 11) 196 at 208; Ogba v. Onwuzo (2005) 6 SC (Pt. 1) 41; (2005) 14 NWLR (Pt. 945) 331.
This issue, to my mine, is not a big deal. I now move to the next issue which is very relevant and directly touches the merit of the appeal.
Issue 3 deals with whether or not the court below was right in its holding that PW14 and PW44 were justifiably discredited. Senior counsel for the appellants maintained that the lower court did not offer any reason for the finding in its judgment. Senior counsel observed that the trial Tribunal held that the evidence on record by PW14, PW44, and PW45 constituted hearsay evidence because the witnesses especially PW14 and PW44 admitted that they did not move beyond their respective polling units on the election day and therefore would not know what happened in the other units. The discountenance of their evidence included their testimony on their respective observation on result sheets and other electoral documents which they directly observed which was contrary to the provisions of sections 38 and 126 of the Evidence Act, 2010.
Senior counsel submitted that a court must give reasons for its judgment. He cited the case of Emmanuel Egbanelo v. Union Bank of Nigeria Ltd. (2000) 7 NWLR (Pt. 666) 534 at 557.
Senior counsel for the 1st, 2nd and 3rd respondents observed that PW14 and PW44 whose witness statements on oath replicate various malpractices contained in the petition admitted that each of them only stayed at his unit on the day of election. They admitted that they were not at the polling units where they alleged that results were excluded without justification. He further stated that they were not at the polling units where they alleged that there were violence, multiple thumb printing and other malpractices.
Senior counsel observed that PW14 under cross-examination admitted that all he said were hearsay. He submitted that hearsay evidence is inadmissible. He referred to section 38 of the Evidence Act, 2010 and cited Buhari v. Obasanjo All FWLR (Pt. 273) 154 and Hashidu v. Goje (2003); 15 NWLR (Pt. 843); 352 at 393.
Senior counsel for the 4th respondent observed that all the appellants are complaining about is the fact that the lower court did not give any reason. He submitted that it is the correctness of the decision of a court and not the manner of reaching the decision that matters. He cited Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130 at 159; Owojobi v. Olanipekun (1985) 4 SC 156. He submitted that the reason given by the Tribunal was not challenged and same affirmed by the lower court has not been challenged and thus conceded. He cited Odedo v. I.N.E.C (2008) 17 NWLR (Pt. 1117) 554 at 630.
Senior counsel also submitted that the two witnesses, under cross-examination, admitted that they were only at their respective units where they voted on the day of election and did not know what happened in other polling units where they maintained that various malpractices took place in nine Local Governments of Nasarawa State.
It is basic that a person who says he was only in the polling unit where he voted on the day of election would not know of malpractices that happened in other polling To that extant, the evidence PW14 and PW44 is clearly hearsay. Same is not in tune with the provision of section 38 of the Evidence Act, 2011. See: Hashidu v. Goje (supra). It is incomprehensible that PW14 and PW44 could embark upon falsehood by deposing to spurious allegations of malpractices which did not happen in their presence and to their direct knowledge. The trial Tribunal rightly disregarded their hearsay evidence and the Court of Appeal was on a firm stand when it held as follows:-
We have carefully read all the briefs riot vis-à-vis the proceedings of the trial Tribunal. PW14 and PW44 were justifiably discredited by the trial Tribunal.’
The reason given by the court below was that the hearsay evidence of PW14 and PW44 was justifiably excluded. The fact that this finding is correct is not contestable. I support both courts below.
I have no hesitation in resolving the issue against the appellants and in favour of the respondents.
The next issue which is issue 4 is whether the court below properly considered the evidence of PW40. Senior counsel for the appellants submitted that the lower court fell into grave error when it failed to consider all the related issues raised by the appellants but only considered the evidence of PW40 in arriving at its decision as if PW40 was the only witness of the appellants.
Senior counsel maintained that the evidence of PW40 was general and imprecise and should not be preferred to the evidence of their other witnesses. He cited I.N.E.C. v.Oshiomole (2009) 4 NWLR (Pt. 1132) 601 at 661.
Senior counsel for the 1st, 2nd and 3rd respondents maintained that the appellants applied for subpoena to issue on PW40 – Independent National Electoral Commissions Head of Operations to be their witness. He opined that the trial Tribunal ascribed probative value to the evidence of PW40 and same was affirmed by the court below. He cited Agbi v. Ogbeh (2006) All FWLR (Pt. 329) 941 at 968. Senior counsel maintained that the decision in I.N.E.C. v. Oshiomole cited by the appellants counsel is distinguishable.
Senior counsel reiterated the fact that the appellants called PW40 on their own volition and they are bound by his evidence. He cited Ibrahim Waziri v. Shehu Shagari & Anr. (1983) NSCC 431 at 434.
Senior counsel for the 4th respondent observed that for all intents and purposes PW40 being appellants witness, they must swim or sink with the evidence proffered by him.
He submitted that the appellants cannot pick and chose which part of the testimony of PW40 is to be believed or attempt to bring in evidence of other witnesses to substitute his own. He cited Boy Muka v. The State (1978) 10-11 SC 305.
Senior counsel observed that PW40 was not declared as a hostile witness and was not re-examined by appellants counsel. He maintained that contrary to the failure of the appellants to prove their case the respondents brought primary and raw evidence in areas being challenged in terms of ballot papers and ballot boxes in order to satisfy pre-conditions laid down in Haruna v. Modibo (2004) 16 NWLR (Pt. 900) 487 at 551 and ANPP v. Usman (2008) 2 NWLR (Pt. 1100) 1 at 85-86 and also called witnesses to disprove the Petitioners claim. He felt that the imaginary scale referred to in Mogaji v. Odofin (1978) 4SC 91 was properly applied and same tilted against the appellants.
PW40, the Director of Operations of Independent National Electoral Commission was called by the appellants as their witness. Their case must stand or fall with his evidence which did not help their case at all. He gave evidence that contradicted the evidence of other witnesses. PW40 stated that elections where the 4th respondent won were free and fair. He said there was non- compliance with the Electoral Act in Doma Local Government, Laminga Ward, Anna Town of Alaye Ward in Doma Local Government, Oshugu Poling Unit of Loko Ward in Nasarawa Local Government where 1st appellant had upper hand. This is admission against interest. The evidence of other witnesses cannot be employed to counter that of PW40 who was not declared a hostile witness and not re-examined. Same points at internal contradiction in the evidence adduced by the appellants. The court will not pick and chose which one to believe and which to disbelieve. See: Boy Muka v. The State (1976) 10-11 SC 305; Onyemena v. The State (1974) All NLR 522 at 530. Like it happened in the case of Waziri Ibrahim v. Shehu Shagari (supra) P.W.40 called by the appellants herein helped to disprove most of the allegations they sought to rely upon.
It is not like the position in I.N.E.C. v. Oshiomole where PW47 therein testified in support of Comrade Oshiomole.
The lower court was in order in the stance posed by it. The issue is, without any equivocation, resolved in favour of the respondents.
Senior counsel for the appellants argued issues 5 and 8 together. At this point issue 7 is also of moment. Senior counsel for the appellants maintained that these issues question the decision of the lower court allowing the cross appeal without proper consideration of the cross-respondents brief of argument. He made submission galore on the point.
Senior counsel for the 1st, 2nd and 3rd respondents felt that what the appellants seems to be challenging was that their issues as submitted by them was not considered and that same is a challenge to the way and manner in which the court wrote its judgment. He again cited Omotola & Ors. v. The State (supra).
Senior counsel maintained that the Court of Appeal found that evidence on record has shown that there was over voting in the polling units of the Local Government Areas of Doma, Kotona and Obi which were objected to by 4th respondent upon which the Court of Appeal allowed the objection to votes. Upon finding over voting the Court of Appeal acted rightly.
Senior counsel for the 4th respondent maintained that objection to votes credited to the appellants in Kokona, Doma and Obi Local Government Areas was proved by the evidence of DW28 and DW29. Ballot boxes and ballot papers used for the election in the disputed areas and units were produced. On the order of the Tribunal the ballot papers were counted against the ballot boxes in the presence of parties and duly signed by them. At the end the number of ballot papers issued to the respective polling units as indicated in Form EC8 As far exceeded the actual ballot papers which is a combination of used and unused ballot papers issued to the respective polling units. He maintained that the only rational conclusion to be reached is that of ballot stuffing and/or multiple voting in the three Local Government Areas and in tune with paragraph 53 (2) of the Manual for Election Officials 2011 and as held in Seriki v. Are (1999) 3 NWLR (Pt. 595) 469 at 481, such election result should be automatically cancelled.
In respect of the issues, the lower court found as follows:-
‘The evidence before the Tribunal was that there was over voting in Doma, Kokona and Obi Local Government Areas. The register of voters in respect of these units were tendered at the Tribunal. It showed differential between the Form EC8As and the actual ballot papers used at the election. The counting was consequent upon the order of the Tribunal. The evidence of PW40 supports the stand of the cross-appellant.
Since the materials were before the Tribunal, the Tribunal would have considered them in view of the differentials pointing to the issue of over voting in respect of the three Local Governments. The Tribunal would have upheld the objection but regrettably he (sic) did not. Accordingly, this issue is resolved in favour of the cross- appellant.”
I cannot see how the findings of the court below as quoted above can be impugned. The complaint of the cross-respondent which by inference touch on the mode of writing the judgment of the court below cannot obliterate the fact that as found by the court below, over voting was clearly proved and duly found by the court below. The objection to votes by the 4th respondent was rightly upheld by the court below. In tune with the directive in paragraph 53(2) of the Manual for Election Officials 2011, the result was rightly cancelled by the 1st respondent. See: the case of Seriki v. Are (supra).
It is the truth of the matter, as established in this case that should be considered. There is no need to rove into intricacies. I affirm the stance taken by the court below.
The issues are resolved in favour of the respondents.
Issue 6 relates to the propriety or other wise of the lower courts overruling of the Tribunal on the results of Oshugu and Anna Town Poling Units.
Senior counsel for the appellants maintained that there is contradiction in the evidence of DW3 and DW9 as to whether it was DW3 – the collation officer or DW9 the presiding officer who cancelled the result for Oshugu polling unit. Learned counsel submitted that the conflict in the evidence of DW3 and DW9 should be resolved from available documentary evidence to wit Exhibit 44(3). He cited the case of Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238.
Senior counsel for the 1st, 2nd and 3rd respondents maintained that there was no conflict in the evidence of DW3 and DW9.
Senior counsel for the 4th respondent also maintained the same stand.
The Court of Appeal found as follows :-
‘We have read the evidence of DW3 and DW9 and there are no contradictions and contrary to the finding of the Tribunal that there were contradictions in their evidence. The result in Exhibit 19 as admitted by the presiding officer – DW9 who saw everything was cancelled by him because of violence.’
As there is conflict in the evidence of DW3 and DW9, such should be resolved by the consideration of Exhibit 44(3) Certified True Copy of the report of the Electoral Officer for Nasarawa Local Government Area. See: Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238. The report which should have been considered by the court below; but was not, reads as follows:-
‘In Loco Registration Area, the collation officer cancelled the results of the election in Oshugu (004) because of incorrect and inappropriate entries in Form EC8A and EC8A (1).’
From the above, it is clear that the result was cancelled by DW3, a collation officer and not by DW9 the presiding officer who had the vires to do same at the Polling Unit.
The trial Tribunal was correct on this point. The stance of the court below rests on quick sand. The position taken by the trial Tribunal is restored. This will however not tilt the status quo.
In conclusion, I resolve all the issues except issue 6 against the appellants. In effect, the appeal is hereby dismissed. The judgment of the Court of Appeal is, in essence, hereby affirmed. I make no order on costs.
SC. 35/2012