Alhaji Yusuf Ibrahim Na-bature V. Alhaji Isa Aliyu Mahuta & Ors (1992)

LawGlobal-Hub Lead Judgment Report

TOBI, J.C.A.

The appellant and the 1st respondent contested the election into the House of Representatives in the Funtua Federal Constituency on the 4th of July 1992. While the appellant contested the election under the platform of the Social Democratic Party (S.D.P.), the 1st respondent contested the election under the platform of the National Republican Convention (N.R.C.). By the official results, the appellant scored 11,507 votes while the 1st respondent scored 23,736 votes. The 1st respondent was accordingly declared duly elected by the 4th respondent.

The appellant filed a petition at the National Assembly Election Tribunal, Katsina contesting the election result. He averred in his petition that “the 1st respondent obtained an apparent and colourable majority over the petitioner whereas in truth and in fact your petitioner had a majority of lawful votes of the electors in Funtua Federal Constituency.” The appellant also claimed in his petition as follows:

(1) The votes cast in a number of polling stations were not correctly added up or counted at the ward and Local Government collating centres.

(2) The votes cast at a number of polling stations exceeded the total number of persons accredited to vote at those polling stations.

(3) The entire election was invalid by reason of corrupt practices and offences against the provisions of the National Assembly (Basic Constitutional and Transitional Provisions) Decree No.18 of 1992.

Both parties gave evidence at the hearing. After a careful consideration of the evidence before it as well as submissions of counsel, the Tribunal dismissed the petition. In the concluding paragraph of the judgment, the Chairman of the Tribunal. Mrs. Ifeyinwa C. Nzeako, (Coram, Daniel A.S. Olorunfemi, Alhaji Hussein Mukhtar, Alhaji Hanafi Sa’adu and Dr. D.A. Adekilekun Tijani,) said:

“The petitioner in this case has failed to discharge the burden that rests on him to prove that there was substantial non-compliance with the Decree which affects the result of the election substantially. The result of the election cannot be said to have been substantially affected unless it could have been different substantially but for the irregularity or non-compliance complained of. The Petitioner therefore does not suffer any disadvantage and the 1st Respondent has undoubtedly scored a majority of the lawful votes cast at the election and was rightly returned elected by the 4th respondent.”

Dissatisfied with the decision of the Tribunal, the appellant has come to us. Briefs were filed and duly exchanged. The appellant formulated the following issues for determination:

“1. Whether there was free and fair election and/or whether the election was conducted substantially in accordance with the principle of Decree No.18.

(i) Whether it is always necessary to prove that non-compliance with the principle of Decree No.18 of 1992 affected the result in the election before an election result is invalidated.

(ii) What is the correct interpretation of section 42(1) of National Assembly (Basic Constitutional and Transitional Provisions) (Decree No.18) 1992.

(iii) Whether the Honourable Election Tribunal was correct to holding that Form EC8A can be given to any other person beside polling agents and at any other place beside polling stations.

2. Whether the allegations of bribery and inflation of figures has been proved in this case and whether the election for Dukke/Makera ward can be nullified on this ground.”

The 1st respondent adopted the above issues in his brief of argument. The 2nd to 4th respondents however formulated the following issues for determination:

“1. Was there any proof of non-compliance with the provisions of National Assembly (Basic Constitutional and Transitional Provisions) Decree No.18 of 1992?

2. If the answer to (1) above is in the affirmative, did the noncompliance substantially affect the result of the election?
3. Was the allegation of bribery established by the petitioner?
4. Was paragraphs 30(5) and 31(sic) of Schedule 3 to Decree No.18 breached by the Respondents?”

Before I go into the submissions of counsel, I would like to deal briefly with the issues formulated by learned counsel for the appellant. Although the issues were duly adopted by learned counsel for the 1st respondent, they do not seem to have been elegantly drafted.

The position of the law is that issues arising for determination in an appeal must be concisely and precisely formulated. They must arise directly from the grounds of appeal. I have carefully examined the ground of appeal and I do not see any ground in which the “issue of free and fair election” is canvassed. Accordingly, the first limb of Issue No.1 goes to no issue. See Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) 208; Lemboye v. Ogunsiji (1990) 6 NWLR (Pt.155) 210; Biishi v. J.S.C. (1991) 6 NWLR (Pt.197) 331; Ikpuku v. Ikpuku (1991) 5 NWLR (Pt.193) 571.

One other requirement is that issues must not be repetitive or verbose.

Elegancy is one basic attribute of proper formulation of issues. In this case the formulation of the three sub-issues, (if I may so can them for want of better expression) is to say the least inelegant and to some extent confusing. By the three sub-issues, the impression is created that they come under Issue No.1. But is that correct? I think not. In my view, all the three so-called sub-issues can stand as distinct issues, outside Issue No.1. The other aspect is the use of the words “free and fair election” in Issue No.1. I will return to it later in this judgment, when I will deal with the submission of counsel.

Arguing the appeal, learned counsel for the appellant, Mr. T.J. Daniel, submitted that the election conducted in the Funtua Federal Constituency into the House of Representatives was not free and fair in that the need to allow citizens resident therein to exercise their democratic right to elect a candidate of their choice as provided by Decree No.18 of 1992 has been grossly negated, and most of the procedures laid down in the said Decree to ensure free and fair election has been grossly abused.

Referring to Schedule 3 to Decree No.18 of 1992, learned counsel submitted that the procedure to be followed at elections specified in the schedule is to ensure free and fair election. He argued that where the conduct of an election was not substantially in compliance with the principle of the Decree, this court can invalidate such election. He contended that paragraph 30(5) of Schedule 3 is provided for the avoidance of deflation and inflation of election results at any stage after the transaction at polling station might have taken place and also to enable the candidate have a record of the polls to check the collation of election result at both ward and Local Government levels.

Dealing with Form EC8A(1). Learned counsel submitted that paragraph 30(3) and (5) discloses that the forms are to be given to the polling agents present at the polling stations after they have signed the copies. He accordingly argued that the noncompliance with the provision of paragraph 30(5) in the whole of Mahuta Ward is a large scale malpractice which rendered the conduct of the election not free and fair.

Counsel further submitted that the arbitrary change of collation centre by the Mahuta Ward Returning Officer and the act of the Presiding Officer of the same ward in not releasing Form EC8A (1) to polling agents constitute offences under sections 48(b) and 49(1) of Decree No.18 of 1992, for which this Court is entitled to nullify the election result.

Contending that election was not held in Unguwar Jika, Marinai, and Dandarau polling stations, learned counsel submitted that it was a negation of section 26 of the Decree. Since the non-election in the three polling stations resulted in the disenfranchisement of large numbers of voters, the election was not free and fair and substantially not in compliance with the principle of the Decree. Urging the court to nullify the whole election or that of Mahuta Ward, counsel referred to Obisesan v. Ogunsola (1979) 2 L.R.N. 378, Basheer v. Same (1992) 4 NWLR (Pt.236) 491 at 509, Dashe v. Bawa (1989) 1 NEPLR 71 at 79 and Imiere v. Salami 2 NEPLR 131.

On whether the evidence of bribery and inflation of figures on Form EC 8A(1) was hearsay, learned counsel argued that the Tribunal was wrong in not adverting its mind to the fact that the evidence of P.W.1 and P.W.7 was on admission of the allegations made by the affected Presiding Officer. Since the evidence of the two witnesses was neither challenged under cross-examination nor rebutted by the 1st respondent’s witnesses, it established the criminal conduct alleged by the witnesses. Calling in aid Omoregbe v. Lawani (1980) 3-4 S.C. 108, counsel urged the court to allow the appeal.

Learned counsel for the 1st respondent, Mr. O.B.M. Odeh, submitted in his brief of argument that the ejection conducted in the Funtua Federal Constituency into the House of Representatives was free and fair in that it was conducted in substantial compliance with the laid dawn rules of procedure as provided by Decree No.18 of 1992. He submitted further that the fact that both agents for the petitioner and the 1st respondent were not given copies of Form EC8A (1) at the polling stations, did not affect the election in any way. This at best, constitutes procedural irregularity which did not go into the substance of the election. It would have been otherwise if election was not conducted in accordance with all the other provisions of paragraph 30 of Schedule 3 to the Decree, counsel contended. Counsel further submitted that for an act to nullify an election, it must have been done with the aim of giving advantage to one party at the expense of the other. To counsel, that was not the situation in this case as both parties were not given copies of Form EC8A (1), which means that the act was not done mala fide and cannot therefore nullify the election. Even though the said Forms EC8A (1) were given to P.W.2 at the collation centre, there was no evidence that they were tampered with. Therefore all that should weigh on the mind of this court is whether the forms signed at the polling stations were the same as those that were given to P.W.2. Counsel submitted that they were the clean forms, hence the contention of counsel for the appellant holds no water, as this court cannot be made to work on speculations and technicalities, but to see that substantial justice rather than technical justice is done. He relied on Opia v. Ibru (1992) 3 NWLR (Pt.231) 658 at 667.

Learned counsel also argued that the appellant did not prove how the non-compliance, if any, with paragraph 30(3) and (5) of Schedule 3 to the Decree has rendered the mechanism to check incorrect recording of results and subsequent alteration of figures ineffective.

Contending that P.W.2 who was later given the Form EC8A (1) was an agent of the appellant and the Local Government Returning Officer was a superior officer with the 4th respondent, counsel submitted that in essence, all the transactions were done by persons charged with the conduct of a free and fair election as well as by duly accredited agents of the appellant. It therefore makes no difference on the results, irrespective of where, when and who gave the forms. The most important thing is that the actual results were not tampered with by any of the parties, counsel argued. He argued further that the burden was on the appellant to prove noncompliance. He referred the court to section 42(1) of the Decree and the case of Eriobuna v. Ezeife (1992) 4 NWLR (Pt.236) 417 at 419.

On the change of the collation venue, learned counsel submitted that the insecurity of Mahuta Primary School necessitated the change and that the change did not affect the result of the election. Failure on the part of the appellant to show how the change affected the result of the election does not help his case. He relied once again on Eriobuna v. Ezeife (supra) and Opia v. Ibru (supra).

On the alleged offences under sections 48(b) and 49(1) of the Decree, learned counsel submitted that they were not proved beyond reasonable doubt. The allegations, to counsel, were merely speculative and untenable before the eyes of the law and urged the court to hold accordingly. Even if there was evidence of noncompliance what should weigh on the mind of this court is whether the noncompliance substantially affected the results of the election, counsel submitted.

On the issue that elections were not held in three polling stations, learned counsel submitted that the evidence of P.W.2 was hearsay. He also submitted that the tendering of the voters cards by P.W.2 did not establish that election was not held in the polling stations but rather the owners of the cards tendered did not vote. Therefore section 26 of the Decree was not contravened, counsel submitted.

Relying on the evidence of D.W.1 and D.W.2, learned counsel submitted that contrary to the contention of the appellant, election was held in Unguwar Maigayya and Unguwar Dankuda. To counsel therefore, nobody was disenfranchised.

On the provision of section 42(1) of the Decree, learned counsel submitted that the subsection does not envisage an absolute compliance with the provision of the Decree, thus non-compliance with the Decree per se cannot nullify an election. He relied on Opia v. Ibru (supra). Referring to Dzungwe v. Swem (1965) NNLR 33; Kudu v. Aliyu (1992) 3 NWLR (Pt.231) 615 at 620 and Eriobuna v. Ezeife (supra).

Learned counsel submitted that the onus was on the appellant to prove that non compliance substantially affected the result of the elections. He urged the court to dismiss the appeal.

Learned Counsel for the 2nd to 4th respondents, M.D. Ibrahim, Esq, learned Attorney-General of Katsina State, in his brief of argument, conceded that although there were some irregularities in the election, thus resulting in some non-compliance, the burden was on the appellant to prove that such non-compliance substantially affected the result of the election. To the learned Attorney-General, the appellant did not discharge the burden, as no evidence was led to that effect. He relied on Eriobuna v. Ezeife (supra) and Dashe and others v. Bawa (supra).

On the allegation of bribery, learned counsel referred to the evidence of P.W.2 and P.W.7 and submitted that the crime was not proved beyond reasonable doubt. Relying on Oyegun v. Igbinedion and others (1992) 2 NWLR (Pt.226) 747, learned counsel contended that the N.R.C. agent has to be linked with the 1st respondent before it could be held that there was corrupt practices during the election.

Dealing with the provision of paragraph 30(5) of Schedule 3 to the Decree, vis-a-vis Form EC8A(1), learned counsel submitted that no direct evidence was led to establish that the polling agents of the appellant were not given Form EC8A(1) at the polling station. All that was put up was a pigment of the appellant’s imagination, counsel said.

As regard paragraph 31 of Schedule 3 to the Decree, learned Attorney General submitted that no evidence was led to show that a particular place had been designated as a ward collation centre. Therefore the appellant was estopped from saying that the results of the election at Mahuta ward were not collated at a collation centre. He also urged the court to dismiss the appeal.

I promised returning to the issue of free and fair election. This is necessary as learned counsel for the appellant predicated his line of argument on it as the first issue. Section 41 (1) of Decree No.18 of 1992 clearly provides for the grounds on which an election may be questioned. The subsection does not contain any such ground of “free and fair election”. The words, “free and fair” are not only large but vague and not capable of any precise legal definition, and a ‘fortiori legal meaning.

Where a matter on appeal is covered by a specific statute, such as in this case, counsel are not entitled to go outside the enabling statute in search of expressions which are more convenient to them. Rather they are bound to invoke the provisions of the enabling statute in the argument of their case in the brief. In the instant case, instead of relying on the provisions of section 41(1) of Decree No.18 of 1992 – on the grounds in which an election could be questioned -learned counsel introduced the new ground of “free and fair election”. I will accordingly discountenance that ground in this judgment. That does not however make the entire Issue No.1 useless. The second limb which is apparently couched as an alternative issue is relevant and it will be duly considered.

The main issue in this appeal is that of non-compliance with the principle of Decree No.18 of 1992, and the legal consequences or effect of such noncompliance vis-a-vis the provision of section 42(1) of the Decree. I will deal specifically with each allegations of non-compliance. Let me take paragraph 30(2), (3) and (5) of the 3rd Schedule to the Decree. Paragraph 30 deals with election into the House of Representatives and the counting of votes. Paragraph 30(2) specifically provides for the procedure to be adopted by the Presiding Officer after counting of the votes. By the sub-paragraph, the Presiding Officer must take two steps:

(a) Loudly announcing the number of votes counted and

(b) Entering the votes scored by each candidate in a statement of Result Form as in Form EC8A (1) in Schedule 5 to the Decree.

By paragraph 30(3), the Form shall be signed and stamped by the Presiding Officer and counter-signed by the candidates or their agents where available at the polling station. By paragraph 30(5), the same Presiding Officer shall give to the polling agents and the Police present copies of completed Form EC 8A(1) after it has been signed by both the Presiding Officer and the Polling Agents as required by paragraph 30(3) and (4).

Since the complaint of non-compliance with paragraph 30(5) was in relation to the Mahuta Ward. I should confine myself to that ward only. What really happened there? The evidence of P.W.2 is relevant here. This is part of what he said:

“On the same date after the election I sent for all the EC8A (1) forms and the agents … I collected the EC8A (1) forms and sorted out those with irregularities. Then I filed them … Before I could get these Form EC 8As. it was a great struggle because none was issued to our agents … I had to pressurise the Returning Officer at the Local Government Collating Centre who directed the ward returning officer to release them to me.”

Reacting to the above evidence, the Tribunal said at page 79 of the Record:

“Failure of the presiding officers in Mahuta ward to give polling agents copies of results at the polling stations has also been established but evidence has also been adduced by P.W.2 that he received copies of the Forms EC8A(1) from the Local Government Returning Officer. It is pertinent to note that paragraph 30(5) to Schedule 3 of Decree No.18 of 1992 simply mandates the Presiding Officer to give the police and polling agents copies of Forms EC 8A but the paragraph does not indicate whether the copies ought to be given at the polling stations or at the collating Centre.”

I do not think the issue is exclusively whether the copies of completed Form EC8A (1) were given at the polling stations or at the collating centre. The issue is whether the copies were given to the polling agents and the police. Therefore since the Tribunal found as a matter of fact that the Presiding Officer failed to give polling agents copies of completed Form EC 8A(1), the provision of paragraph 30(5) was breached, and I so hold. Whether the breach amounts to substantial noncompliance with the principle of the Decree as to invalidate the election is a different consideration.

There is evidence that P.W.2 a Coordinator of the appellant, received copies of Form EC8A (1) at the Local Government Collating Centre and took action on them by sorting out what the witness called “irregularities”. I do not see any injustice suffered by the appellant. It looks clear to me that the intention of Decree No.18 of 1992 is not to encourage technicalities or rely on arid legalism in the interpretation of the provisions of the Decree. On the contrary, it is the intention of the Decree to play down on technicalities and ensure that substantial justice is done in the entire electoral process. See Professor Opia v. Chief Ibru and others (1992) 3 NWLR (Pt.231) 658 at 690 – 691.

This takes me to the complaint that elections were not held in Unguwar Jika, Marinai and Dandarau polling stations. On the complaint, P.W.3 said in his evidence in-chief:

“I went to the polling station in the morning to cast my vote. The Presiding Officer came to the polling station. I presented my card to him. He asked me to wait till more people come. When voters assembled the Presiding Officer told me he was going to eat. He never came back again. I left the station at 1.30p.m. It was time to pray and I left.”

P.W.4 also said in his evidence in-chief:

“I did not vote in the 4th July elections because I left my house in the morning and went to the polling station, waited for the election officials till 3p.m. None of them appeared. There were many of us.”

As opposed to the above evidence, there is evidence by the defence witnesses that election look place in the polling stations. D.W.1 said in his evidence in-chief:

“The Presiding Officer came to the polling station at about 8am. Shortly after his arrival, voters began to arrive with their voting registration cards. They presented their cards to the Presiding Officer for accreditation. After accreditation about 11a.m., the voters went and queued, each voter joined the line of his choice. People in each queue was (sic) counted. I have with me the cards of some of my members who voted.”

D.W.2 gave similar evidence. D.W.3 also said in his evidence in-chief:

“I remember 4th July, 1992. Election took place. I was party N.R.C. co-ordinator. I co-ordinated at Mahuta ward.”

Of course, D.W.4, the 1st respondent testified that election took place on 4th July, 1992.

While the Tribunal believed the evidence that some voters did not cast their votes in some polling stations, it did not believe the evidence that elections were not held in the polling stations concerned.

What worries me is that none of the witnesses for the appellant specifically mentioned the polling station or stations that elections did not hold. And here I am not unmindful of the fact that evidence was led as to where they live. In my view, where a voter resides does not necessarily coincide with the name of a polling station. It could be. It could not be. It depends upon the arrangement in the particular ward.

P.W.4 under cross examination said:

“I did not leave the station that day. I prayed in the mosque near the polling station. We all left there at the same time. I don’t know the name of the polling station because I am illiterate, but it is a polling station in front of our house. There is no police station in front of our house.”

And so, it is difficult to attach probative value to the above evidence and the like, as it relates to the names of the polling stations that elections could not hold. By the very nature of election cases, which are sui generis, evidence alleging election malpractice or election irregularity must not only be precise and definite but must also be unequivocal and certain. A vague and rigmarole evidence alleging election malpractice or election irregularity cannot be accepted by a tribunal or court of law.

A related issue is whether this court is competent to interfere with the findings of the Tribunal that election took place in the polling stations. The law is elementary that an appellate court cannot ordinarily interfere with the findings of fact of a trial court merely because it should have arrived at different findings if it were in the shoes of the trial court. Since an appellate court has not the eyes and ears of a trial court, it cannot deviate from the findings of a trial court, unless such findings are perverse or not borne out from the evidence before the court. See Dr. Ezike and others v. Ezeugwe (1992) 4 NWLR (Pt.236) 462; Lawal v. Dawodu (1972) 1 All NLR (Pt.2) 270; Kudu v. Aliyu (1992) 3 NWLR (Pt.231) 615; Fatoyibo v. Williams (1956) SCNLR 241; Ekpeyong v. Nyong (1975) 2 S.C 71. Since the findings of the Tribunal in the case are consistent with the evidence led by the witnesses, I cannot see my way clear in interfering with them.

Learned counsel made heavy weather of what he regarded as the disenfranchisement of the voters in the polling stations concerned. Citing a number of authorities, counsel urged this court to nullify the election and order a by-election. One such case is Obisesan v. Ogunsola (1979) 2 N.L.R. 378. In that case the presiding officer did not allow 100 people to vote while polling had not closed. It was in that circumstance that the Supreme Court held that the election was a nullity. There was no such situation in this case.

He also cited the case of Dashe v. Bawa (1989) 1 NEPLR 71. In that case, this court, at its Jos Division was faced with the interpretation of section 35(1) of the Local Government Elections Decree No.37 of 1987, a subsection which is inpari materia with section 42(1) of Decree No.18 of 1992. In the case, this court held that if the nature of non-compliance is such as to give an obvious advantage to one of the parties to the election, such non-compliance is substantial and unless there is evidence to the contrary, has affected the result of the election in favour of the party who enjoyed the advantage and against the party who has suffered a disadvantage. There is no evidence that the 1st respondent had an obvious advantage which arose from a non-election in the polling stations concerned. If anything the evidence accepted by the Tribunal was that election was conducted in the polling stations.

Another case relied upon by learned counsel was Imiere v. Salami (1989) 2 NEPLR 131. In that case, there was evidence that there was substantial noncompliance in terms of voting hours which affected all the 52 polling stations. It was in that circumstance that Ogundare, J.CA. (as he then was) allowed the appeal. Again, there was no such evidence here.

The last case cited by learned counsel is Basheer v. Same (1992) 4 NWLR (Pt.236) 491. In that case, the National Electoral Commission cancelled the votes cast in nine polling stations of Gayama ward of the State House of Assembly Constituency of Donga Local Government Area where the petitioner allegedly scored a total of 3,751 votes while the 1st respondent scored a total of 823 votes. The Election Tribunal rejected the evidence of the Petitioner and dismissed the petition. On appeal, this court, in its Jos Division nullified the election of the 1st respondent on the ground that the electoral officers unjustifiably and unlawfully rejected the results in the nine polling stations. It was in the above circumstances that Adio, J.C.A. said at p.506:

“In this case, the electoral officers who were bound by the provisions of Decree No.50 of 1991 to accept the copies of the results in the nine polling stations aforesaid and to include the votes recorded for each candidate therein in the determination of the final result, unjustifiably and unlawfully rejected the aforesaid results from the said nine polling stations. The votes recorded in the aforesaid results in the nine polling stations showed that majority of the electors who voted did so in favour of the petitioner but the failure by him to secure a majority of valid votes was due to the aforesaid non-compliance with the relevant provisions of Decree No.50 of 1991 on the part of the electoral officers. For that reason, the election in this petition is bad; it is invalid and is hereby nullified.”

And it was in the above circumstances that I also said at page 509:

“This apart, it is against all known principles of fairness and fairplay to disenfranchise the entire electorate of the nine polling stations for no fault of theirs. Why should be entire electorate suffer for the crime of a supposedly small group of the voting public?

Learned counsel relied heavily on the above and submitted that the election should be nullified and a by-election ordered. Certainly, the facts of Basheer as narrated above are quite different from the facts in this case. A ratio of a case can only be determined in relation to the facts of the case and not in vacuo. It is the facts of a case that enrich a ratio. Therefore it is a futile exercise to take a ratio of a case outside the facts and parade it before a court of law in the name of the rules of stare decisis.

I do not want to believe that an election result must be nullified whenever there is evidence of disenfranchisement of a number of voters, however small. That is certainly not the position of the law. It is completely outside the principle of Decree No.18, 1992, particularly section 42(1) thereof.

Learned counsel for the appellant relied heavily on section 26 of Decree No.18 of 1992 in fortification of his contention that an ejection was not held in the polling stations concerned. What does section 26 say? It simply provides that “Elections to each House of the National Assembly shall be held on a date to be appointed by the National Electoral Commission.” Learned counsel submitted that section 26 was breached. I ask: in what way? Since the Tribunal came to the conclusion that election was held in the polling stations concerned, I am of the firm view that the section was not breached. I should say with the greatest respect, that learned counsel took a rather simplistic view of an otherwise important issue. That contention accordingly fails.

I now take the issue of change of the collation centre. Learned counsel for the appellant submitted that the results of Mahuta ward were not collated at the designated centre, which was the Mahuta Primary School. The Returning Officer for the ward decided to move to Funtua town for the collation on the basis that it was unsafe to collate at the designated centre. That, in essence, was the evidence before the Tribunal.

Paragraph 31(1) of Schedule 3 to Decree No 19 of 1992 provides that “after the recording of the result of the election, the Presiding Officer shall take the election results and materials to the ward collation centres under security escort” While I agree that the provision is mandatory, a party who alleges its breach should go further to prove that he suffered injustice arising from the breach. In other words, a party should satisfy the Tribunal that he was a victim of election malpractice or that there were irregularities which substantially affected the results of the elections. In the instant case, there is no such evidence and it is difficult for this court to invalidate the election results in Mahuta ward.

The appellant, in his petition, alleged corrupt practices and offences. He averred in paragraph 8 as follows:

“Your petitioner further avers that the entire election was invalid by reason of corrupt practices, and offences against the provisions of the National Assembly (Basic Constitutional and Transitional Provisions) Decree No.18 of 1992”.

He further averred in his petition that he would in • proof of his charges rely on “all the relevant forms EC 8A(1), EC 8B(1) and EC 8C(1) for Funtua Constituency.” He also averred to rely on “all the voters registers, and relevant voters cards of disenfranchised voters within Funtua Constituency; and on all other documents that are garmane to this petition.”

One ground on which an election may be questioned is that the election was invalid by reason of corrupt practices or offences against the Decree. That is the language of section 41 (1)(b) of Decree No.18 of 1992. Sections 46 to 74 of the Decree generally provide for the offences against the Decree.

By our adjectival law, the burden is on the party alleging the commission of an offence to prove the allegation. And the standard of proof of election offences, like all other offences, must be beyond reasonable doubt. See Dr. Ezike and others v. Ezeugwu (1992)4 NWLR (Pt.236) 462: Etuk v. Isemin (1992)4 NWLR (Pt.236) 402: Dr. Jalingo v. Rev. Nyame and others (1992) 3 NWLR (Pt.231) 538: Professor Ayua v. Rev. Adam and others (1992) 3 NWLR (Pt.231) 598: Professor Opia v, Chief Ibru and others (1992) 3 NWLR (Pt.231) 658.

The requirement of our procedural law is that the proof should be beyond “reasonable” doubt and not beyond all doubt or any iota of doubt. If I had my way, I should have removed the adjective ”’reasonable” and extend the burden of proof beyond any iota of doubt. This is because of the nature of election cases and the do or die trend in the Nigerian attitude to politics. Perhaps that could have reduced the plethora of election petitions to some extent. I cannot, on my own, extend the frontiers of proof, since that will run foul to the tenor of the previous decision of the superior courts on the issue.

I should therefore apply the traditional adjectival burden of proof beyond reasonable doubt. Has the appellant satisfied that burden in this case? Before I answer this question, I must say the obvious that a party discharges the burden at the trial and not through dexterious arguments in his brief. Therefore what an appellate court should examine in determining the strength of the case of an appellant in the arena of proof is the record of proceedings. While the brief may strengthen the position of the law, it cannot manufacture evidence not given at the trial. I have taken the trouble to go into this length on the matter because of the way learned counsel for the appellant advanced his arguments in the brief.

Having said so, I return to the” question I posed here. Has the appellant satisfied that burden in this case? P.W.1, P.W.2 and P.W. 7 gave evidence of money changing hands during the election. Let me briefly take portions of the evidence of the witnesses. P.W.1 said in his evidence in-chief:

“In Mahuta Ward, the S.D.P. supervisors reported to me that my agents had been offered money to manipulate the figures and that they had reported this to the Police.”

P.W.2, under cross-examination said:

“1 was told 1st respondent offered bribe. I was also told that 1st respondent’s agents offered bribe to suppress evidence. I cannot name the people who were offered bribe. Not that I don’t know them.”

P.W.7, a Superintendent of Police of the Katsina Police Command said in his evidence in-chief:

“I did not go to Mahuta in person. I dispatched my men … I can’t remember the particulars of the 2 cases. What I can remember is that an S.D.P. party agent came to my office to report that at one polling station (name I can’t remember) he saw the Presiding Officer, the N.R.C. party agent and S.D.P. party agent inflating the figures. They conspired and inflated the figures of the result. When they were brought to me, I interrogated them, they confessed inflating the figures and accepting N80.00 each as part payment by N.R.C. party agent for them to inflate the figures. They said the balance (of which amount I can’t remember) was to be paid later.”

Under cross-examination, the witness said:

“I was also told an N.R.C. agent was giving (sic) this money to help in manipulating figures. I don’t know the N.R.C. agent who gave the money, but I saw him. I was not there when the money was given. I have forgotten the name of the N.R.C. agent.”

Could the Tribunal have relied on the above evidence? Did the Tribunal rely on the above evidence? In its judgment, the Tribunal, rightly in my view, said:

‘The evidence of both P.Ws. 1 and 7 on the giving of money by N.R.C. agent at one of the polling stations and thereby influencing the inflation of figures may and may not be hearsay. It is hearsay and inadmissible in evidence if the testimony of these witnesses seek to establish the truth of the fact that money was given by N.R.C. agent which led to conspiracy and alteration of election figures by the Presiding Officer and the polling agents of both parties at the relevant polling station which has been specified. On the other hand it will be direct evidence and admissible if the evidence of P.Ws. 1 and 7 merely seeks to establish the fact that those statements were uttered by the persons who told them the story or confessed under interrogation as stated by P.W.7. The evidence of P.Ws. 1 and 7 in this respect, seeks to establish the truth of what they were told because what those pieces of evidence tend to prove is the allegation of corrupt practices and alteration of election figures. The evidence of both witnesses, on the point, is hearsay and therefore inadmissible in evidence by virtue of section 76(a) of the Evidence Act.”

I have quoted verbatim ad literatim the findings of the Tribunal at great length because of their importance to the issue before us.

While I entirely agree with the Tribunal. I would also like to add that the evidence of P. W.2 was also hearsay. What is unique in his evidence is that although he knew the names of those who were offered bribes, he refused to given evidence as to their identity. In law, a witness such as P.W.2 is under no compulsion to give evidence in a court, not to talk of giving a particular kind or type of evidence. While the law gives him freedom to give only the kind or type of evidence he wants to, the same law vests in the court to accept or refuse the evidence. In my view, a witness who is miserly in his evidence in court has himself to blame, as in the final analysis, it is the party on whose behalf he gives the evidence that suffers.

The so-called confession made to P.W.7 cannot in law be basis for accepting the evidence of the witness. A court of law has not the jurisdiction to accept a “confessional” statement which could form the basis of a dispute in a criminal trial. And what is more, the persons who allegedly made the confession to P.W.7 were not called in evidence and treated as hostile witnesses in the event that they decided to deny the statements they made to P.W.7. I think the long and short of the whole issue is that the Tribunal rightly rejected the evidence of the witnesses, being hearsay.

After a very careful arithmetical analysis of the different exhibits tendered, the Tribunal came to the conclusion that the 1st respondent was credited with some votes that ought to have been rejected and also that some votes were not based on correct figures, and that those results were false in material particulars. Based on its findings, the Tribunal deducted all the votes cast in the areas complained by the appellant. The result of that exercise is that the 1st respondent still scored majority of lawful votes. Holding that the appellant failed to discharge the burden that there was substantial non-compliance with the principle of the Decree which affected the result of the election substantially, the Tribunal dismissed the petition.

And this takes me to the interpretation of section 42(1) of Decree No.18 of 1992. The subsection provides in the following terms:

“An election shall, not be invalidated by reason of non-compliance with this Decree if it appears to the court or tribunal that the election was conducted substantially in accordance with the principle of this Decree and that non-compliance did not affect substantially the result of the election.”

In Basheer v. Same (supra) I had cause to interpret the above provision. I have since realised that the interpretation was given per incuriam, in the light of a number of decisions of the Supreme Court and this court. See Awolowo v. Shagari and others (1979) 6-9 S.C. 51: Ojukwu v. Onwudiwe (1984) 1 SCNLR 247; Eriobuna v. Ezeife (supra); and Professor Opia v. Chief Ibru and others (supra).

The correct interpretation of the subsection is that an election shall not be invalidated by the sale reason that it was not conducted substantially in accordance with the principle of Decree No.18 of 1992, unless such non-compliance has affected substantially the result of the election. In other words, the first limb of the subsection is parasitic on the second limb. Both limbs must be satisfied in their negative content before an election could be invalidated. In my view, the basic aim of section 42(1) is to save election results as much as possible, thus saving valuable time and money on the part of both the candidates and government.

On the whole, I am satisfied with the very careful way the Tribunal handled the matter. It skillfully went into some valuable arithmetical details which are clearly set out in the Schedules attached to the judgment, thus giving legal strength to the findings. I do not think I am in a position to improve on the judgment. The appeal therefore fails and it is accordingly dismissed. I award N1,000.00 costs to each set of respondents.

Other Citations: (1992)LCN/0112(CA)