Haruna Yunusa Saeed & Anor V. Patrick Ibrahim Yakowa & Anor (2012)

LAWGLOBAL HUB Lead Judgment Report

F. TABAI, J.S.C.

On the 28th of April, 2011, the Independent National Electoral Commission (2nd Respondent) conducted the election into the office of the Governor of Kaduna State. The 1st Respondent Patrick Ibrahim Yakowa contested the said election under the platform and sponsorship of the Peoples Democratic Party. The 1st Appellant on the other hand contested under the platform and sponsorship of Congress for Progressive Change. The 2nd Respondent declared the 1st Respondent the winner with the score of 1,334,319 valid votes; while the 1st Appellant was recorded to have scored 1,133,564 valid votes. The 1st Respondent was following the declaration and return sworn in as the Governor of Kaduna State. The Appellants were not satisfied with the result of the election announced by the 2nd Respondent and therefore filed this petition at the Governorship/Legislative Houses Election Tribunal, Kaduna on or about the 19th May, 2011. The 1st and 2nd Respondents filed their respective replies. The petition then went into trial with the petitioners/Appellants calling 33 witnesses. The 1st Respondent called 7 witnesses, while the 2nd Respondent called no witness. And after the respective final addresses of counsel on behalf of the parties, the trial tribunal gave its considered judgment.

The petitioners were not satisfied with the said judgment and thus proceeded on appeal to the Court below. The appeal was therein dismissed. The Petitioners were still aggrieved by the judgment of the Court below and have come here on further appeal by their Notice of appeal dated and filed on the 23rd December, 2011. The said Notice of Appeal raised eight grounds of appeal. On the 2nd of February, 2012 this Court granted leave to file and argue eleven additional grounds of appeal. The resultant amended Notice of Appeal contains nineteen grounds of Appeal.

Based on the said nineteen grounds in the Amended Notice of Appeal, the parties have through their counsel filed and exchanged their briefs of argument. The Appellants’ Brief was prepared by Kabiru Tanimu Turaki, SAN and same was dated and filed on the 25th of January, 2012. The 1st Respondent’s Brief was prepared by J. B. Daudu, SAN. It is dated and was filed on the 31st January, 2012. The Brief of the 2nd Respondent was prepared by Emmanuel J. J. Toro, SAN. It is dated 31st of January, 2012 but filed on the 2nd February, 2012. All these briefs were adopted and relied upon by counsel for the respective parties on the 2nd of February, 2012.

In the Appellant’s Brief, Kabiru Tanimu Turaki, SAN formulated eight issues as follows:-1. Whether it was proper for the Lower Court to have lumped together the ten issues distilled for determination by the appellants even though the complaint before them was that the trial tribunal misdirected itself by taking the three issues together.

(Ground 10).

2. Whether the failure of the Lower Court to reach a decision one way or the other on the various issues and complaints competently raised before them has not occasioned a travesty of justice (Ground 20).
3. Whether the lower court was right to have deemed ground 10 of the notice and grounds of appeal before the lower court regarding Kauru Local Government as abandoned even though admittedly, strenuous arguments had been canvassed in support thereof under issues 1 and 4 (Grounds 6, 9 and 14).
4. Whether all the 1,376 electoral documents which are documents duly certified and authenticated by the 2nd Respondent tendered and admitted without objection could be said to be dormant and of no evidential value (Grounds 2, 3, 15 and 16).
5. Whether the exclusion of the evidence of the expert witnesses PW31 – 33 and their reports even though unchallenged and uncontroverted, was proper and sustainable in law (Grounds 1, 17 and 18).
6. Whether the Lower Court was not in error by failing to draw a distinction between proof of criminal allegations and proof of non-compliance with the Electoral Act and whether the Appellants proved the allegations of non-compliance with the Electoral Act made against the 2nd Respondent in the conduct of the 28th April, 2011 Governorship Election in Kaduna State as clearly shown in the various oral and/or documentary evidence in the records (Grounds 1, 7, 12 and 13).
7. Whether the Appellants were bound to call a community of witnesses in proof of civil and criminal allegations in the conduct of the Governorship Election of 28th April, 2011 in Kaduna State (Ground 19).
8. Whether considering the totality of the records and the extant provisions of paragraph 54 of the 1st

schedule of the Electoral Act vis a vis the Federal High Court Rules, the conclusion of the lower court in relation to the evidence of PW1 is sustainable (Ground 11).

J. B. Daudu, SAN raised a preliminary objection on the jurisdiction and competence of the petition. The preliminary objection is argued in the 1st Respondent’s Brief. And on the said 1st Respondent’s Brief, he formulated the following four issues for determination.

29. Whether any of the 10 issues for determination formulated for determination was not considered by the Court of Appeal so as to suggest that the appellants were denied proper hearing [Issue no 1] [Grounds 6, 9, 10, 14, & 2].
30. Whether the Court of Appeal was right in affirming the Tribunal’s conclusion that both grounds of

corrupt practices and non compliance with the provisions of the Electoral Act were not established at all by the Petitioners [Issue no 2] [Grounds 1, 7, 11, 12, 13 & 19].

31. Whether the Court below was right when it affirmed the conclusion of the trial Tribunal that the thousands of documents dumped without testing and demonstration were of any value to the case of the Petitioners [Issue no 3] [Grounds 2, 3, 15 & 16].
32. whether the court below rightly affirmed the worthlessness of the Appellants expert witnesses

[Issue no 4] [Grounds 4, 17 & 18].

In the 2nd Respondent’s Brief, Emmanuel J. J. Toro, SAN formulated five issues for determination in the following terms:-

1. Whether the Learned Justices of the Court of Appeal were right in dismissing the appellants’ appeal and affirming the judgment of the trial Tribunal because having regard to the pleadings in the election petition and the quality of the evidence adduced in support thereof, both oral and documentary, the appellants upon whom the burden of proof was cast had failed to establish the various allegations of criminal acts and electoral malpractices upon which they anchored or predicated their election petition.

(Ground of appeal Nos. 1st, 5th and 20th).

2. Whether in the circumstances of this appeal, the learned justices of the court of Appeal were right in affirming the judgment of the trial Tribunal that the sumptuous documentary evidence tendered by appellants’ counsel from the Bar lacked probative value or credibility in the absence of credible oral testimony of witnesses to demonstrate or explain their purport or purpose and link same to relevant aspects of the petition since the trial Tribunal could not embark on its own to examine or investigate such documentary evidence out of Court (Ground of appeal No. 2 &16).
3. Whether the learned Justices of the Court of Appeal were right in holding that the trial Tribunal had

properly evaluated the evidence of the witnesses adduced at the trial inclusive of the documentary evidence in the light of the pleadings before it in the election petition before arriving at the findings and conclusion that the appellants as the petitioners had failed to prove their petition. (Ground of appeal Nos. 3, 6, 7 and 8)

4. Whether the learned Justices of the Court of Appeal were correct in affirming the decision of the trial Tribunal to the effect that the three witnesses paraded by the appellants as experts did not qualify as experts and therefore in rejecting or discountenancing their testimony and the reports tendered through them. (Ground of appeal Nos. 4, 17 & 18).
5. Whether their Lordships of the Court of Appeal were right in affirming the judgment of the trial Tribunal to the effect that in the circumstances of the present appeal the principle of severance of pleadings is inapplicable to the present appeal (Ground of appeal No. 11, 12 & 13).

He also associated himself with the arguments of J. B. Daudu, SAN for the 1st Respondent with respect to the preliminary objection.