Atanda Gasali Lawalv. Isiaka Magaji & Ors (2009)

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JUMMAI HANNATU SANKEY, J.C.A.

Elections were conducted into the various Houses of Assembly all over the country on the 14th April, 2007. The Appellant herein, Atanda Gasali Lawal, contested the Kwara State House of Assembly Election for Afon Constituency in Asa Local Government Area on the platform of the Democratic People’s Party (DPP). The 1st Respondent, Isiaka Magaji, was also a contestant and the flag bearer of the 2nd Respondent, Peoples Democratic Party (PDP) in the said election. At the close of the election, the 1st Respondent of the PDP was declared and returned as the winner.

Dissatisfied, the Petitioner filed a Petition before the Governorship and Legislative Houses Election Tribunal sitting at Ilorin on the 15th May, 2007. Therein, he complained that the return, declaration, announcement or proclamation of the 1st Respondent as winner of the said election by the 5th Respondent, i.e. the Electoral Officer Asa Local Government Area of Kwara State, was wrongful as the election was invalid by reason of corrupt practices, widespread and massive election malpractices and substantial noncompliance with the provisions of the Electoral Act, 2006. At the close of trial, Judgment was delivered on the 14th March, 2008 dismissing the Petition for lacking in merit.

Aggrieved, the Appellant filed this Appeal.

At the hearing of the Appeal, Mr. Jawondo, learned Counsel for the Appellant, adopted the Appellant’s Brief of Argument dated 8th and filed on 9th September, 2008, as well as the Appellant’s Reply Brief dated and filed 26th February, 2008. He relied on both Briefs as the Appellant’s arguments in the Appeal. In respect of Issue NO.2, Counsel made a few additional submissions. He submits that by virtue of Sections 16, 73 and 159 of the Electoral Act, 2006, the Voters’ Registers used in the election are not the same as envisaged by Section 16 of the Act. By virtue of Sections 73 and 159, there is no way that a party can have the Voters’ Registers used in the election. Instead, INEC is to have exclusive custody of all materials used in the election, including the Voters’ Registers. Therefore, a party or candidate cannot have a certified true copy of the Voters’ Registers used in the election except by an order of the Tribunal or Court under Section 159 of the Act. Thus, Section 16 will not cure the failure of INEC to produce the Voters’ Registers used in the election. He therefore prayed the Court to allow the Appeal.

Mr. Issa, learned Counsel for the 1st Respondent, adopted the 1st Respondent’s Brief of Argument dated 26th September, 2008 and deemed filed on 2nd March, 2009.

He cited as an additional authority the case of Buhari V INEC (2008) 12 SC (Pt. 1) 1 at 169 in respect of paragraph 8.7 at page 17 of the Appellant’s Brief. He submits that proof of election petitions is based on both documentary and oral evidence and the evidence of three eye witnesses was not sufficient to prove allegations of malpractices in 43 Polling Units. He therefore urged the Court to dismiss the Appeal for lacking in merit.

Mr. Ibraheem, learned Counsel for the 2nd Respondent, equally adopted the 2nd Respondent’s Brief of Argument filed on 25th March, 2009 but deemed filed on 30th March, 2009. In respect of the issue of the production of the Voters’ Registers, Counsel submits that the failure to produce same by INEC was duly explained and was beyond INEC’s control. In the light of the explanation given, the Appellant still proceeded with the Petition. He submits that the failure to produce the Voters’ Registers has not led the Appellant to suffer any miscarriage of Justice. He urged the Court to resolve Issue NO.2 against the Appellant, and to therefore dismiss the Appeal.

Finally, Mr. Salako, learned Counsel for the 3rd to 5th Respondents, adopted the said Respondents’ Brief of Argument dated and filed 22nd September, 2008 as the Respondents’ arguments in this Appeal and urged the Court to dismiss the Appeal.

The Appeal is predicated on ten (10) grounds as adumbrated in the Appellant’s Notice and Grounds of Appeal. From these grounds, the Appellant distilled three (3) issues for determination by this Court. The 1st, 2nd and 3rd to 5th Respondents equally formulated issues which, for the most part, overlapped the issues formulated by the Appellant. I therefore adopt the issues formulated by the Appellant as the issues for determination in this Appeal. I set them out hereunder:

1. Whether or not the Tribunal is right in rejecting or excluding from evidence Form EC8A(1) and the Declaration of Result Form on the ground that copies of the result were not made to accompany the Petition nor listed in the List of Documents filed along with the Petition.
2. Whether or not the Tribunal was right in its failure to consider and pronounce on the issue of refusal of the 3rd – 5th Respondents to produce the Voters’ Registers used for the election despite the service of a subpoena duces tecum on them.
3. Whether or not the Tribunal properly considered and evaluated the evidence before it and was right in its decision that the Petitioner/Appellant failed to prove the alleged electoral malpractices, irregularities and non-compliance with the Electoral Act and Guidelines/Manual alleged in the Petition as required by law having regard to the oral and documentary evidence before the Tribunal.

Issue NO.1: Whether or not the Tribunal is right in rejecting or excluding from evidence Form EC8A (1) and the Declaration of Result Form on the ground that copies of the results were not made to accompany the Petition nor listed in the List of Documents filed along with the Petition.

Under this issue the Appellant submits that the Tribunal erred and misdirected itself in law when it rejected or excluded from evidence the results of the election from Polling Stations (Form EC8A(1)) and the Declaration of result Form on the ground that the certified true copies of the result forms were not listed in the administrative or technical names given to them by INEC in the List of Documents filed along with the Petition. Learned Counsel for the Appellant, Mr. Jawondo, contends that the fact of the results of the election were pleaded in paragraphs 10, 12, 15 and 17 of the Petition and notice was given that results of the election at various stages of the election would be relied on. He also contends that they are pleaded as item 8 on the List of documents attached to the Petition as “Summary of April 14th 2007 result sheets and collation forms, Ballot Papers (fake and genuine)”. In addition he argues that the 1st Respondent in his Reply to the Petition pleaded them in paragraph 33 thereof as well as in his List of Documents to be relied upon in the trial.

Counsel submits that the effect of Paragraphs 1(1) (c), (2) and 4(8) of the Tribunal and Court Practice Directions, 2007 is that documents, etc, that are not filed along with the Petition or Reply or not listed in the List of Documents, cannot be received in evidence without the leave of the Tribunal or Court. He contends that the rules do not require documents to be stated in their technical names such as Form EC8A (1) EC8B (1), etc, as the Tribunal’s approach implied. He therefore submits that the rejected documents are admissible and were wrongly rejected. This is more so as Sections 64, 65, 70, 72 and 75 of the Electoral Act, 2006 refers to “Results” as the outcome of the polls at the polling stations, collation centers and the final announcement. Counsel relies on IBWA Ltd V Imano (Nig) Ltd (2001) 3 SCNJ 160 at 176 to submit that the failure to use the technical name given of the stage-by-stage results is not fatal.

Counsel argues in the alternative that the rejection in evidence of the results is erroneous in law since the documents were pleaded in paragraphs 19 and 33 of the 1st Respondent’s Reply to the Petition and listed as No. 1 on the List of documents to be relied on by the 1st Respondent. The Appellant was therefore entitled to take advantage of those pleadings. Dagaci of Dere V Dagaci of Ebwa (2006) 1 SC (Pt. 1) 87 at 136 is relied on. He also relies on Ipinlaye V Olukotun (1996) 6 NWLR (Pt. 453) 148 & Allied Bank of Nig. Ltd V Akubueze (1997) 6 NWLR (Pt. 509) 374 to submit that what governs admissibility is relevance, and documents in support of facts pleaded by any of the parties are admissible. He concludes with the submission that the rejection and exclusion of Form EC8A (1) in evidence by the Tribunal occasioned a miscarriage of Justice and prays the Court to allow the Appeal on this issue.