Alhaji Musa Dikko Kalgo V. Abdullahi Magaji Kalgo & Ors (1999)
LawGlobal-Hub Lead Judgment Report
IBRAHIM TANKO MUHAMMAD J.C.A.
The Independent National Electoral Commission (INEC) conducted elections nationwide into the various State Legislative Houses on the 9th of January, 1999. The appellant herein, as petitioner at the lower tribunal, was fielded by the All Peoples Party (APP) to contest for the seat in the Kebbi State House of Assembly representing Kalgo Constituency. 1st respondent contested along with him under the banner of the Peoples Democratic Party (PDP). 1st respondent was returned elected with majority votes of 6,463 as against appellant’s 5,623. The appellant disputed the results and declaration of the 1st respondent as the winner of the said election. In his petition to the Gubernatorial and Legislative Houses Election Tribunal for Kebbi State (the tribunal), the appellant set out the following grounds:-
The 1st respondent is/was a person disqualified from contesting the Kebbi State House of Assembly election by reason of not having validly resigned his employment with Bunza Local Government Education Authority before his adventure into partisan politics.
(ii) The 1st respondent is/was a person not qualified or disqualified from contesting and being elected as a member of Kebbi State House of Assembly and has not paid his tax as at when due for the last 3 years preceding the date of the election.
(iii) The 1st respondent is/was a person not qualified or disqualified for election to Kebbi State House of Assembly as he knowingly presented a forged/false certificate of tax clearance to the 4th respondent in his bid to be cleared for contest.
(iv) And your petitioner states that the election was voided by corrupt practices, offences and non-compliance with the provisions of Decree 3 of 1999 – State Government/ Basic constitutional and Transitional Provisions) Decree 1999:
a. agent of the 1st respondent and some of the supporters of the PDP in some parts of the Kalgo Local Government Constituency committed acts of multiple voting and have by so doing distorted the true result of the election to the prejudice of the petitioner Evidence was taken by the tribunal and at the end, the tribunal dismissed the petition as appellant could not prove his allegations.
Dissatisfied with the tribunals declaration, appellant appealed to this Court. He filed a Notice of Appeal containing five grounds of appeal. Parties filed and exchanged briefs of argument. In his brief, learned counsel for the appellant formulated two issues for determination –
“(i) Whether on consideration of the weight of evidence before the decision of the tribunal below is not perverse.
(ii) Whether the tribunal below was right in not cancelling 848 votes scored for the 1st respondent on ballot papers which bore the stamp of ‘NECON’ on the ground that the appellant pleaded 1267 illegal votes.”
Learned counsel for the 1st respondent formulated the following issues:-.
“(a) Whether or not there was any admissible evidence sufficient probative value on which tribunal below could have found that the 1st respondent was not duly elected by majority of lawful votes cast at the election.
(b) Whether the tribunal below was right in not cancelling 848 votes scored by the 1st respondent on ballot papers which bore the stamp of NECON or were not signed on the reverse side.
2nd – 4th respondents adopted the issues formulated by the 1st respondent. On the hearing date, the parties each, adopted and relied on his brief of argument.
It appears to me clearly that the import of the issues formulated by learned counsel on behalf of their respective parties is the same, I shall therefore consider the appeal in line with the issues formulated by the learned counsel for the appellant.
In his submission on Issue 1, learned counsel for the appellant argued that the evidence required in proof ought to be documentary. Exhibits A – N124 tendered through PW2 at the tribunal and especially ballot papers at Yallabe polling station were tendered by consent whereas M – M282 were ballot papers thumb-printed for the 1st respondent bore ‘NECON’ stamp at their back and were unsigned by anybody. Same applied to ballot papers N-N124 though these were both stamped and signed. Further, no any form of documentary or oral evidence was adduced by any of the respondents as they rested their case on that of the appellant. This therefore, left the respondents averment in their pleadings unsubstantiated which by that fact ought to be deemed as abandoned.
Learned counsel for the 1st respondent submitted on the 1st Issue that as at the close of the appellant’s case there was no legally admissible evidence of any probative value on which any reasonable tribunal may interfere with the election or return of the 1st respondent as duly elected. He argued further that the evidence of PW1 was hearsay which is legally inadmissible. He argued further that the bundle of document on which the appellant laboured to show as not properly stamped or signed were not legal or admissible evidence as they were to prove facts not pleaded and were thus liable to be expunged by the tribunal.
On Issue No.2, learned counsel for the appellant submitted that although under ordinary civil procedure, both parties and the court are bound by the pleaded facts, same is not absolutely the case with an election tribunal which is empowered by Schedule 6 Paragraph 15(3) of Decree 3 of 1999, to look beyond issues pleaded in order to do justice. Learned counsel for the 1st respondent on Issue No.2 submitted that the tribunal was right in not canceling the 848 votes scored by the 1st respondent at the 5 polling stations complained of. He argued that the evidence of PW2 remained; uncontroverted that the election was free and fair. The citation of Schedule 6 paragraph 15(3) by the appellant was irrelevant as that would have entitled the tribunal to do justice in a cloistered manner. The import of sub paragraph (3) of paragraph 15 of Schedule 6 of the Decree is giving to the tribunal a discretion to inquire into issues otherwise properly raised or apparent for the purpose of full determination of the election and not for shadow chasing. In the end, learned counsel urged this Court to dismiss the appeal.
From what I have observed from the contents and format of the brief filed by the 2nd-4th respondents, that brief, in all material particulars is identical, word to word except for counsels names, with that of the 1st respondent. I therefore deem it unnecessary to quote anything from 2nd – 4th respondents’ brief, as their learned counsel, has by conduct adopt the brief prepared and filed by learned counsel for the 1st respondent.
It is pertinent to observe from the outset that as a result of the abandonment of some of the grounds of the petition to wit: grounds 5(i), (ii), (iii), (vi) a, e, f, and 7 were all abandoned by the petitioner and the tribunal accordingly struck the same out. To my understanding, the tribunal decided the petition on ground 5(iv), (b), (c), (d), (g), (h), (i) and (j). Issue one is based on the weight of the evidence the tribunal attached to the evidence made available before it. In its consideration of the grounds, the tribunal considered paragraphs 5(iv)(b), (c) and (d) together. The allegation by the petitioner in these sub paragraphs was that there were multiple voting and inclusion of invalid votes. The tribunal evaluated the evidence of PW1 who was the petitioner himself and it concluded that by his evidence, PW1 was not at the polling station and none of his agents was there. The tribunal made the following findings and comments:-
“No one was able to give any evidence before us to the effect that any malpractice was perpetrated. On the contrary, the PW2 told the tribunal that he did not receive any complaint of any over-voting or voting by proxy. In fact he said that the general conduct of the election was free and fair.
Although the petitioner told this tribunal that 1267 illegal votes were added for the 1st respondent at Diggi Ward, he did not tell the tribunal how he arrived at the figure. His counsel in his submission before the tribunal reduced the figure to 848. In the long run. counsel to the 1st respondent conceded 407 underserved votes. Whichever way one looks at it, it boils down to the petitioner failing to prove the allegations before the tribunal.”
The general law on proof in civil litigations including election petitions is well settled: he who asserts must prove. See Sections 136 & 137 of the Evidence Act; AKUN V MANGU LGC (1996) 4 NWLR (PT.441) 207; OKOROAFOR V AFAWORONINI (1996) 2 NWLR (PT.430) 278; E.D. TSOKWH & SONS CO. LTD. V. UBN LTD. (1996) 10 NWLR (PT.478) 281. Since the appellant was unable to prove the alleged facts, there was virtually nothing the trial tribunal could do but throwaway his case on those alleged facts. See: EDOSOMWAN v. OGBEYFUN (1996) 4 NWLR (PT.442) 266.
On Issue No.2, the tribunal found that the documentary evidence put in by the petitioner contradicted the actual votes allegedly recorded for the 1st respondent and that the petitioner’s case was at variance with his pleadings. The tribunal gave instances as follows:-
“At Ilela it was 663, Kofar Yamma 346, Shiyar Dangaladima 292, at Yallabe 408 while nothing was said about Tulmawa. The effect is that not only is the petitioner’s case at variance with his pleadings and therefore goes to no issue, the evidence is self-defeating and therefore unacceptable. This tribunal is not obliged to act on it.
I completely agree with the tribunal. This is because the cardinal principle of the law is that where pleadings are at variance with the evidence led or vice-versa, the whole evidence in that respect or pleadings goes to no issue at all. See: OFOMAJA V COMMISSIONER OF EDUCATION (1995) 8 NWLR (PT.411) 69; EGBUMIKE v. ACB LTD (1995) 375) 34; UGO v. OKAFOR (1996) 3 NWLR (PT.438) 542; OGOJA L.G. V. OFFOBOCHE (1996) 7 NWLR (PT .458) 48.
It must be noted as well, that the general view of all the appellate courts is that the evaluation of evidence at any given stage is the sole function of the trial court that had the privilege of seeing, hearing and assessing the witness and his demeanours as he testifies. Thus an appeal court, except where perversity rears its head, cannot interfere in the lower courts or tribunals findings of facts and evaluation of evidence. See: AKPABIO V STATE (1994) 7 NWLR (PT.359) 635; SALAKO V ALAO (1994) 8 NWLR (PT.360) 47; QUEEN V UCHE (1994) 6 NWLR (PT.350) 329; OKINO V OBANEBIRA (1994) 5 NWLR (PT.344) 348. In my view there was correct evaluation of all the evidence that was put before the lower tribunal.
On the issue of irregularity amounting to non-compliance with the provisions of Decree No.3 of 1999, the lower tribunal did observe that the petitioner did not tender the statements of results in the appropriate Forms which should have shown the number of registered voters, the number of accredited voters and the number of actual voters to enable the tribunal decide whether there was over-voting or not. I must add here that there is no running away from the basic rule that the onus of proof was certainly on the appellant who was alleging non compliance which would have entitled the tribunal to cancel the ‘illegal’ votes accredited to the 1st respondent. Now, where there is an allegation of this magnitude – election malpractice, the law requires the petitioner to prove the malpractice alleged and must proceed to show that such malpractice has affected the results of the election. See: BASSEY v. YOUNG 3 NSCC 28; OKOROJI v. NGU (1992) 9 NWLR (PT.262) 113; OGUNBIYI v. OGUNDIPE (1992) 9 NWLR (PT.263) 24; OPIA V IBRU (1992) 3 NWLR (PT.231) 658; KUDU v. ALIYU (1992) 3 NWLR (PT.231) 615. The appellant did not satisfy the tribunal of the existence of such malpractices that could lead to the nullification of the 1st respondent1s return as a duly elected member of the Kebbi State House of Assembly representing Kalgo Constituency.
In the light of the above, it is clear that this appeal lacks merit and must fail. Accordingly, this appeal fails and is hereby dismissed by me. I affirm the decision of the lower tribunal which upheld the return of the 1st respondent by the 3rd and 4th respondents as the validly elected member to represent Kalgo Constituency in the Kebbi State House of Assembly. Appellant to pay 1st respondent N2,000 as costs in this appeal.
Other Citations: (1999)LCN/0593(CA)