Alhaji M. M. Maska & Anor V. Alhaji Y. Ibrahim & Ors (1999)
LawGlobal-Hub Lead Judgment Report
ONNOGHEN, J.C.A.
This is an appeal against the judgment of the Local Government Council Election Petition Tribunal of Katsina State holden at Katsina delivered on 15th February. 1999 in which it held, inter alia that the 2nd appellant as well as the 3rd respondent have no locus standi in the election petition; that the 2nd respondent has been proved to be an ex-convict but that the petitioners have not established a link between 2nd respondent and Shehu Umar Maska, the Vice Chairman of 1st respondent; that there is no prayer that the election be nullified so the tribunal cannot give to a party that which he has not asked for and that the only ground of the petition cannot be entertained by the tribunal.
It is against this decision that the appellants have appealed to this court on 5 grounds filed on 22nd February. 1999. The appellant abandoned the 1st ground of appeal in his brief of argument and is accordingly struck out. Out of the surviving 4 grounds of appeal, the appellants formulated 4 issues for the determination of the court. The grounds of appeal are at pages 81-84 of the record.
The following are the issues submitted for determination in this appeal in the appellant’s brief of argument – see page 4 thereof:
(a) Whether or not on the preponderance of evidence and on the balance of probabilities particularly in the absence of any direct rebuttal the petitioners have linked the 2nd respondent with the convictions. This issue is said to arise from grounds 3 and 6;
(b) Whether or not a political party is a competent party in an election petition;
(c) Whether or not a ground in an election petition challenging qualification of a candidate is competent, and,
(d) Whether or not mere inelegant couching of a prayer is fatal even when the prayer is of a nature properly within the ambit of statutory provisions.
It is important to note that these 4 issues are substantially the same with those formulated by learned counsel for the 1st-3rd respondents in his brief of argument filed on 5th March, 1999. Learned counsel for the 4th respondent formulated only two issues in his brief of argument.
However, before going into the main issues for determination, it is important to take a preliminary point raised in the Ist-3rd respondent’s brief of argument to wit. The notice and grounds of appeal are headed in the wrong court and as such this court lacks the jurisdiction to entertain same. In the course of arguments on it, learned counsel for the appellant Israel A. Usman Esq., applied for leave to amend the offending notice and grounds which Mr. Joe Dappa opposed but we went ahead and granted, reserving our reasons to be assigned in this judgment. Mr. Usman had submitted that what happened is an error which does not occasion a miscarriage of justice, Mr. Dappa opposed the application on the ground that to allow it will render the appeal statute barred.
I am of the considered opinion that the heading of the notice and grounds of appeal is in error which has not occasioned miscarriage of justice. The parties have not been misled by it in any way. As regards the effect of an amendment it is trite law that an amendment dates back to the date the document amended was filed.
That being the case the notice and grounds of appeal so amended cannot be said to be statute barred if the original notice and grounds were filed within time. That apart, it is my considered opinion that this court is engaged in doing substantial justice to the parties so technicalities should not be allowed to becloud that sense of mission which is the pivot of our judicial system. That being the position it is my view that the appeal is properly before this court and is competent, the amendment having been granted as prayed.
On Issue No. 1 learned counsel for the appellants, I. A. Usman Esq., not only submitted that the appellants have on the preponderance of evidence and on the balance of probabilities, particularly, in the absence of any direct rebuttal, linked the 2nd respondent with the convictions but also established the fact that 2nd respondent is the same as Shehu Umar Maska, the Vice Chairman-elect of Funtua Local Government Council, contrary to the findings of the tribunal on the matter.
He stated that the tribunal was wrong in placing an onus on the appellants to produce 2nd respondent; to prove personal service; to bring parents or district head or headmaster or principal of the 2nd respondent’s school etc. That burden of proof in a civil case do shift as in this case. That the 2nd respondent was properly convicted. That there is evidence that the 2nd respondent and Vice Chairman are one and the same person.
Learned counsel for 1st-3rd respondents argued this issue as his issue No.3 in his brief of argument. He submitted that from the pleadings the 1st respondent denied that the 2nd respondent is his running mate. That the appellants failed to prove that the 2nd respondent is the same person as Shehu Umar Maska. That it was the burden of the appellants to show that the 2nd respondent is the running mate of the 1st respondent which they failed to do. That the Vice Chairman elect was not sued so he could not have been served.
In his submissions in his brief of arguments learned counsel for the 4th respondent Ahmed Abdu Esq., submitted that the learned counsel for the appellants misunderstood the issue as formulated by the tribunal.
He further submitted that the tribunal did find as a fact at page 70, paragraph 3 lines 15- 17 that the conviction of Shehu Maska was established. He then urged the court to discountenance the arguments of learned counsel for the appellants on this issue.
He further submitted that the tribunal is right in holding that the 2nd respondent has not been linked with Shehu Umar Maska the Vice Chairman elect.
That the documents produced in respect of the Vice Chairman elect show that Shehu Umar Maska has no other name.
It is my view that the issue as raised is very simple and demands a simple answer. The question is, who is the 2nd respondent on record? The answer is Shehu Maska. The evidence before the tribunal proved conclusively that Shehu Maska is an ex-convict and the tribunal dutifully found and held accordingly – see page 70 where the tribunal stated thus:
“We therefore hold the view that the previous conviction of Shehu Maska at Maska Area Court and Chief Magistrate Court Funtua has been established.”
The next point to be considered under this issue is whether the 2nd respondent is the same person as Shehu Umar Maska, the Vice Chairman elect.
At page 75 of the record the tribunal in considering this point held as follows and I quote:
“…………..We hold that it is difficult for us to hold that proper link of conviction has been made to the Vice Chairman elect.”
It is important to note that throughout the trial 2nd respondent was not present in court. Secondly the 2nd respondent is not stated to have an alias on the records. Thirdly Shehu Umar Maska was not sued in the petition and as such he could not have been served with the proceedings. Fourthly in paragraph 5 of the reply to the petition filed by 1st, 2nd and 3rd respondents they pleaded inter alia, that the 2nd respondent was not the running mate of 1st respondent and that 1st respondent’s running mate has not been found guilty of any offence involving dishonesty or fraud. The testimony of PW1 confirms this at page 31. He said inter alia:
“To the best of my knowledge, my Vice has never been convicted or sentenced by any court. My Vice Chairman’s name is Shehu Umar Maska. He was not served with any petition from this Since the identity of the 2nd respondent vis-a-vis the Vice Chairman elect Shehu Umar Maska is put in issue, it is the duty of the appellants to prove same on the balance of probabilities. The tribunal held that the appellants failed to discharge this duty and I am in total agreement with them. Shehu Umar Maska was not a party to the petition so he could not have been in court. There is no evidence that the man, whose educational credentials predating the convictions were tendered, ever changed his name. If the appellants had sued Shehu Umar Maska, he would have been compelled to appear and it would then have been easier to identify him in the open court as being the same as Shehu Musa. Right now we have a man who is not stated on the records to have an alias and who was not physically present in court being identified in absentia. This, is obviously unacceptable. It is, in my opinion hearsay evidence, it carries no weight. The appellants also want the court to rely on the oral testimonies of their witnesses as to the identity of 2nd respondent and Vice Chairman irrespective of the abundant documentary evidence tending to show that Shehu Maska is not the same as Shehu Umar Maska. It is therefore my considered opinion that that issue has failed and I so hold.
It is absurd to say that Shehu Umar Maska should have come to court to offer evidence in rebuttal. Why should he? He was not sued, he has no case to answer; he was therefore under no obligation to come to court to say that he is not Shehu Maska.
On issue No.2 to wit: whether or not a political party is a competent party in an election petition learned counsel for the appellants submitted that the tribunal was wrong in holding that both the 2nd petitioner and the 3rd respondent were not necessary parties to an election petition based on Decree No. 36 of 1998. That the tribunal did not properly consider the provisions of the statute it relied on in coming to that conclusion. He contended that the word “person” includes any body of persons corporate or unincorporated. That the political parties are registered and are empowered by section 7 of the Political Parties (Registration and Activities) Decree No. 35 of 1998I to sue or be sued in their registered name and that was what the 2nd appellant did.
In his reply Mr. Dappa submitted that the 2nd appellant has no locus standi to present the petition. That by virtue of the provisions of section 83(1) or Decree No. 36 of 1998 only the persons listed therein can present an election petition. This issue was not dealt with by learned counsel for the 4th respondent. I must make haste to state that the tribunal did not decide that a political party is not a legal person with capacity to sue or be sued but that both the 1st petitioner and 3rd respondent are not necessary parties to an election petition based on the provisions of Decree No .36 of 1998. It is my considered opinion that the tribunal is right in so holding having regards to the provisions of section 83 of Decree No. 36 of 1998 which provides as follows and I quote:
“8.3(1) An election petition may be presented by one or more of the following persons:-
(a) a person claiming to have had a right to contest or be returned at an election;
(b) a candidate at an election;
(2) The person whose election is complained of is in this Decree referred to as the respondent, but if the petition complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who look part in the conduct of an election, the Electoral Officer; ……… or that other person shall for the purpose of this Decree be deemed to be a respondent and shall be joined in the election petition as a necessary party.”
This provision is very clear and unambiguous and renders the argument of the appellants an academic exercise in futility. To demonstrate the absurdity of the propositions one may want to know whether in all the elections so far conducted since 5th December. 1998 any of the registered political parties has been a candidate or claiming to have a right to contest or be returned at an election etc.
Better still, has any political party been returned at any of the elections’?
It is my considered opinion that issue No.2 fails accordingly.
On Issue No.3 to wit: whether or not a ground in an election petition challenging qualification of a candidate is competent, learned counsel for the appellants submitted that the evidence led at the trial were on the issue of qualification, not nomination. That records were tendered to show that 2nd respondent was convicted. That there was no evidence challenging nomination.
He then submitted that there is no law debarring the tribunal from inquiring into the issue of disqualification of a candidate and that a ground challenging a candidates’ qualification is valid in an election petition.
In his reply Mr. Dappa submitted that the real question to be determined is not whether a ground on disqualification is a competent ground under the Decree, but whether the only ground as contained in paragraph 2(1) of the petition talking of the validity of the nomination of the 1st respondent is a competent ground. He then submitted that the election tribunal was right in holding that that ground is incompetent.
Learned counsel for the 4th respondent did not deal with this issue in his brief of argument.
I have to say again here that the current thinking of the judiciary of this nation is directed strongly at doing substantial justice not technicalities. Even though the appellants used the word nomination in paragraph 2.1 of his petition, in paragraph 2.1.1 where the particulars are given, it is clear that the petitioners are attacking the qualification of the 1st respondent to contest the election in view of the fact that the 2nd respondent, his alleged running mate, is an ex-convict. In paragraph 2.1.2, the petitioners went ahead to plead the records of the courts that convicted 2nd respondent.
When these paragraphs are read along side with the reliefs as contained in paragraphs 4.1 and 4.6 what I have been saying becomes clearer. The petitioners pleaded as follows:-
“Wherefore your petitioners pray that it be determined as follows:
4.1 A declaration and an order that the 1st and 2nd respondents were not qualified to contest the said election … ”
“4.6 An order that fresh election be conducted …”
The relevant evidence produced at the tribunal is to prove the disqualification of the 2nd respondent to contest the election.
I am of the view that the tribunal ought to have taken a more lenient view of that surviving ground of petition even though it would still have found it not established. I therefore agree with learned counsel for the appellants that the substance of the sole ground contested at the tribunal involved qualification to contest the election, not nomination and that that ground is very competent.
Learned counsel for 1st-3rd respondents has impliedly agreed that where a ground attacks qualification of a candidate to contest an election, it is competent in law.
I therefore resolve that issue in favour of the appellants.
On Issue No.4 to wit: Whether or not mere inelegant couching of a prayer is fatal even when the prayer is of a nature properly within the ambit of statutory provisions; learned counsel for the appellants submitted that prayers 4.1 and 4.6 of the petition are within the purview of section 87 of Decree 36 of 1998 and the respondents were not misled, That it is not correct that the appellants asked for reliefs not known to the Decree.
In his reply, learned counsel for the 1st- 3rd respondents dealt with the matter under his own issue No. 1 in his brief of argument. He said that in the absence of a prayer in the petition that the election be nullified or be declared void, the election tribunal was right in not granting the prayer sought. That the problem with the prayer is not with couching but competency.
Learned counsel for the 4th respondent dealt with the matter as his issue No. 2 in his brief of argument. His argument is very much like that of counsel for the 1st – 3rd respondents. They agree that there was no legally acceptable relief which the tribunal could have granted.
However, it is my view that when one looks at the totality of the pleadings and evidence led at the tribunal, it is clear that the case was fought on the principal issue as to whether or not the 1st respondent was qualified to contest the election info Funtua Local Government Council as Chairman on 5th December, 1998 in view of the fact that 2nd respondent was convicted and thereby not qualified to contest that election. What the respondents are saying is that even if the tribunal had so found, it could not have granted the reliefs sought because according to them the reliefs do not ask for nullification of that election.
However, when you read paragraphs 4.1 and 4.6 of the petition it becomes very clear that the appellants areseeking a declaration that 1st and 2nd respondents were not qualified to contest the election and an order for fresh ejection. It is my view that if the petition were to succeed and the order sought made, it would have had the same effect as nullification of the said election. In my view the relief was valid and within section 87 of the Decree. A petitioner is not bound to use the exact words in the Decree in his relief if he can otherwise achieve the same result. In my view this issue is resolved in favour of the appellants.
However, in conclusion, this appeal partially succeeds in the ancillary issues but fails woefully in the main issues and is accordingly dismissed. The judgment of the Election Tribunal delivered on 15th February, 1999 is hereby affirmed in part.
I assess and fix the cost of this appeal at N1,000.00 in favour of the respondents.
Other Citations: (1999)LCN/0521(CA)