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.
- 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).
- 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).
- 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).
- 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).
- 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).
- 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).
- 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.
- 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].
- 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].
- 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].
- 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:-
- 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).
- 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).
- 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)
- 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).
- 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.
Because of the constraints of time I would not recapitulate the arguments of counsel in their respective briefs of argument. Rather, I would proceed to determine and resolve the issues.
First is the preliminary objection. It was the submission of Daudu SAN that in view of the admitted failure of the petitioner to apply for prehearing session as required by paragraph 18 of the 1st schedule to the Electoral Act 2010 as amended the petition is incompetent. In his reaction, Kabiru Tanimu Turaki SAN for the appellants submitted that the pre-hearing information sheet filed by the Appellants at the trial tribunal on the 24th June, 2011 satisfied the provisions of paragraph 18 (1) of the 1st schedule to the Electoral Act. It was his further submission that even if there was non-compliance with the requirement of application for prehearing session, the non-compliance is only a procedural irregularity, not capable of vitiating the proceedings. This, learned senior counsel contended, is particularly so where, as in this case, the Respondent complains of no-miscarriage of justice and has taken steps in the proceedings after becoming aware of the non-compliance. Reliance was placed on FAMFA OIL LTD Vs A.G.F. (2003) 2 NWLR (part 852) 453 at 467 – 468.
Now paragraph 18 (1) of the 1st schedule to the Electoral Act 2010 provides:-
“Within 7 days after the filing and service of the petitioner’s reply on the Respondent or 7 days after the filing and service of the Respondent’s reply, as the case may be, the petitioner shall apply for issuance of pre-hearing Notice as in Form TF 007”.
I have carefully examined the records of this appeal and I cannot find any application strictly within the meaning of paragraph 18 (1) of the 1st schedule to the Electoral Act. Learned Senior Counsel for the Appellants contended that the pre-Hearing Information Sheet filed at the trial Tribunal was sufficient compliance with the provision of paragraph 18 (1) of the 1st Schedule to the Electoral Act 2010 (as amended). The said pre-Hearing Information Sheet is at pages 396-399 in Vol. 2 of the record. It is dated 23rd of June, 2011 and filed on the 24th of June, 2011. I have examined it carefully and I do not, with respect, agree that it is strictly an application within the meaning of paragraph 18 (1) of the 1st Schedule to the Electoral Act. Be that as it may, there is no doubt whatsoever that it is a step taken by the petitioners/Appellants at the trial Tribunal for the issuance of Pre-Hearing Session Notice to the parties.
And following this filing of the Pre-Hearing Information Sheet, the parties through their counsel submitted to the trial Tribunal issues for determination of the petition. On the 19th of July, 2011, the Tribunal issued the Pre-Hearing Report and Scheduling wherein it adopted, the 1st and 2nd issues proposed by the Petitioners/Appellants, the 1st issue of the 1st Respondent and the 1st issue of the 2nd Respondent and came up with the following three issues which it considered appropriate for the determination of the petition :-
(1) Whether the Governorship Election of 28th April, 2011 in Kaura, Zango Kataf, Jaba, Kachia, Kagarko, Sanga, Chikun, Jema’a, Kajuru and Kauru Local government Areas of Kadunu State was not marred by corrupt practices, fraud, outright rigging and other votes. It yes, whether in those circumstances the 1st Respondents scored lawful majority votes to be return by the 2nd Respondent as the winner of the said election.
(2) Whether the petitioners have established the allegation of corrupt malpractices which for all intends and purposes amounts to the commission of some beyond reasonable doubt as to enable them the reliefs sought in this petition.
(3) If the answer to Nos 1 and 2 above are in the affirmation whether the 1st petitioner ought not to be returned by the 2nd Respondent as the winner of the Election.
(See pages 1320-1322 of the record).
I have earlier held that from the facts available in the records of appeal there was no evidence of the strict compliance with the provisions of paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 (as amended). The crucial issue however is whether having regard to the various steps taken by the Petitioners/Appellants non-compliance can be held to be fatal to the petition Put more specifically, whether in view of the petitioners/Appellants filing of the Pre-Hearing Information Sheet and the formulation of their issues for determination, the Respondents reaction thereto by their own formulation of the issues for determination and the trial Tribunal’s adoption of these issues which it compressed into the above three key issues, the non-compliance can rightly be held to be fatal to the petition
This issue was raised at the Court below and in its judgment at pages 2853 -2854 the court relying on ONYEDEBELU Vs NWANERI (2005) 1 LRECN 207 at 212 found as follows:-
“It is crystal clear that the failure of the Appellants in this appeal to comply with the mandatory and obligatory provisions of paragraph 18 sub-paragraph (1) of the First Schedule to the Electoral Act 2010 (as Amended) which is condition precedent to the entertainment of or adjudication of the said petition ought to have rendered the said determination of the petition by the Tribunal invalid. The trial Tribunal should have dismissed the petition pursuant to paragraph 18 (4) of the First schedule to the Electoral Act 2010 (as amended).”
I wish to state, with respect, that the above approach of the Court below is far too restrictive and technical. The First schedule to the 2010 Electoral Act (as amended) represents the Rules of procedure for Election petitions. And as Rules of court they do not confer jurisdiction. See OGUNREMI & ORS vs DADA & ORS (1962) N.S.C.C. 419 at 422. It follows therefore that a petitioner’s breach of any of the provisions of the 1st schedule does not affect the jurisdiction of the Tribunal or court to entertain or adjudicate on the petition. Rather, such a breach, if substantial, can only amount to the petitioner’s failure to prosecute the petition with the consequence of its dismissal. It is also clear from the reproduced portion of the judgment of the court below that it invoked the provisions of paragraph 18(1) of the First Schedule to the Electoral Act without taking into cognisance the saving provisions of paragraph 53 (1), (2) and (a) of the same schedule. Paragraph 53 (1), (2) and (4) provide:-
“53 (1) Non-compliance with any of the provisions of this schedule, or with a rule of practice for the time being operative, except otherwise stated or implied, shall not render any proceeding void, unless the Tribunal or Court so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such a manner and on such terms as the Tribunal or Court may deem fit and just.”
“(2) An application to set aside an election petition or a proceeding resulting there from for irregularity or for being nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.”
“(4) An election petition shall not be defeated by an objection as to form if it is possible at the time the objection is raised to remedy the defect either by way of amendment or as may be directed by the Tribunal or Court.”
Rules of procedure are made to enhance and facilitate the due administration of justice and are therefore meant to be obeyed. See G. M. O. NWORAH & SONS CO. LTD vs AFAM AKPUTA (2010) 9 NWLR (part 1200) 443 at 473; ANYAN vs A.N.N. LTD (1992) 6 NWLR (part 247) 319; AJAYI vs OMOROGBE (1993) 6 NWLR (part 301) 512.
The current and prevailing principle in the administration of justice however is that where in the beginning or in the course of the proceedings, a party commits an omission or mistake in the laid down practice and procedure, it can be regarded as an irregularity which the Tribunal or court can and should rectify or even ignore so long as it is satisfied that the omission or mistake occasions or is incapable of occasioning any injustice to the other party. This is the principle deliberately engrafted by the Legislature into paragraph 53 (1), (2) and (a) of the First Schedule to the Electoral Act 2010 (as amended). I wish to emphasise again that the approach of the court of Appeal was too restrictive and technical, capable of undermining the very ends of justice for which the rules of procedure in the schedule were made. In the circumstances of this case, the court below had a duty to read the provisions of the First schedule to the Electoral Act 2010 (as amended) holistically, and construe same widely and generously to give effect to its manifest intention. And the manifest intention of the provisions of the First Schedule is for the Tribunal or Court to do substantial justice and not technical justice, There is no complaint whatsoever by the Respondents that the absence of the petitioners/Appellants’ formal written application to the Tribunal for the issuance of Pre-Hearing Notice was prejudicial to their defence.
On the preliminary objection therefore, I hold that in view of the steps taken by the petitioners/Appellants by their filing of the Pre-Hearing Information Sheet and the submission of their issues for determination of the petition and the corresponding steps taken by the Respondents in reaction thereto in their defence of the petition, the petitioners/Appellants cannot rightly be held to have abandoned the petition under paragraph 18 (4) of the First Schedule to the Electoral Act 2010 (as amended). And in the light of the foregoing considerations I hold that the preliminary objection lacks merit and is accordingly overruled is accordingly dismissed.
Let me now consider the issues in this appeal. I have earlier above reproduced the issues for determination submitted by the parties. While they are different in numbers, they are the same in substance. In my view, the ultimate question is whether there is, on record, such quality of evidence that sustains or ought to sustain the petition. And in the resolution of this ultimate question, the first step is the determination of that part of the mass of evidence which constitutes the admissible and legal evidence. And finally, the determination of whether the concurrent decisions of the two courts below are supported by such legal evidence.
But before doing so, let me briefly examine the Appellant’s issues one and two and the 1st Respondent’s issue one. At the court below, the Appellants submitted ten issues for determination. In its judgment, the court below decided to treat them together because in its view the issues are interrelated. At page 2865 of the record, the court per Aboki JCA reasoned as follows:-
“I will now turn to the ten solid issues propositioned by the Appellants in this appeal for determination of this court. They seem interrelated and congruous with one another that I am tempted to consider them together since one leads to the other.”
Learned Senior Counsel for the Appellants referred to the above reasoning of the court below and pointed out the issues where exclusively diverse, distinct and independent of each other and therefore needed to be treated distinctly. It was his submission therefore that by taking all the ten issues together in a rather rushed manner the Appellants were denied fair hearing. Learned Senior Counsel for the 1st Respondent on the other hand argued that the statement of the Court below at page 2865 notwithstanding, all the issues were considered and resolved by the court below. It was his further submission that there is no pre-ordained style of writing judgments and that in view of the attendant time constraints in election cases the procedure adopted by the court below cannot be faulted.
The Notice of Appeal from the Tribunal to the court of Appeal contained 25 grounds of appeal from which the Appellants formulated ten issues for determination. These are contained at page 2480 -2481 vol. 7 of the record. I have examined the issues and the questions raised therein included whether on the strength of the oral testimony of the 33 witnesses called by the Appellants and the 1,376 documentary evidence tendered, the various allegations constituting non-compliance with the Electoral Act were proved. The issues also included the question of whether there is a line of distinction between proof of criminal allegations and proof of non-compliance with the Electoral Act. There were also the questions of whether the PW31, PW32 and PW 38 were experts and whether the documentary evidence tendered by them ought to have been accorded probative value.
I have had a careful look at the judgment and I am satisfied that its decision to consider the ten issues together notwithstanding, the court below addressed the various issues raised. As I stated earlier, the core issue is whether there is such quality of evidence that can be held to have sustained the petition. And in an attempt to assess the quality of evidence the court even embarked on a re-appraisal of evidence to ensure that the decision of the Tribunal was not perverse: It is my view and I hold therefore that, the approach of the court below did not inflict any denial of justice to the Appellants.
I now come to the Appellants’ 4th issue which is the 1st Respondent’s 3rd issue and the 2nd Respondent’s 2nd issue. At the trial, some 1,376 documentary exhibits were tendered across the Bar by learned counsel for the Appellants. And they were admitted in evidence without objection. They are 2nd Respondent’s election materials and their certification and authenticity are not questioned. With respect to the probative value of these documents the trial Tribunal held that the documents not having been tendered by their makers, that is, INEC Officials, polling agents, collation agents or supervisors who alone could explain their contents and purport and answers questions in cross-examination on them, they had no probative value and therefore worthless. The Tribunal relied on Section 91 (1) (b) of the Evidence Act Laws of the Federation 2004 now Section 83 of the Evidence Act 2011 and a number of case law authorities amongst them FLASH FIXED ODDS LTD Vs AKATUGBA (2001) 9 NWLR (part 717) 28; ATIKPEKPE Vs JOE (1999) 6 NWLR (part 607) 443.
The court below affirmed the findings and conclusions of the Tribunal. In its judgment at page 2885 vol. 7 of the record, the court concluded:-
“It is trite that for a document admitted in evidence in the course of the proceedings to be useful to the court, it must be accompanied by admissible evidence by persons who can explain their purport; where this is not done, the documents remain documents admitted in evidence without any weight to the attached to them because they are worthless and lack probative value”
The substance of the submission of Kabiru Tanimu Turaki, SAN is that the documents being certified true copies of electoral documents they are admissible without much ado even from the bar and the failure to tender them through the makers does not diminish their probative value. It was his further submission that the Tribunal and the Court below had unqualified duty to examine, evaluate and utilise any exhibit already admitted. J. B. Daudu, SAN for the 1st Respondent conceded and restated the position of the law that once a document is received in evidence and is so marked it becomes evidence before that court which has a duty to evaluate the probative value. It was his submission however that for any document to be qualified to be so evaluated it must be tested or demonstrated before that court.
The substance of the submissions of Emmanuel J.J. Toro, SAN for the 2nd Respondent is much to the same effect as the submissions on behalf of the 1st Respondent. In addition, learned senior counsel remarked that learned senior counsel for the Appellants who tendered the documents across the bar could not be cross-examined on their contents.
He emphasised the fundamental difference between admissibility of documentary evidence and the probative value or credibility of such evidence contending that admissibility of documentary evidence does not automatically confer credibility or probative value on such admitted evidence. He cited a number of authorities some of which I consider quite apposite to the situation under consideration.
Still on this issue of whether the court ought to have evaluated and accorded probative value to the mass of documentary evidence tendered by the Appellants, learned senior counsel for the 2nd Respondent submitted that the mass of documentary evidence the veracity of which contents the opposing parties had no opportunity of testing in cross-examination cannot be suo motu examined by the court outside the court as that would amount to doing cloistered justice in breach of the principle of fair hearing enshrined in Section 36 (1) 1999 Constitution (as amended). It was his further submission that such a procedure would be tantamount to the court embarking on an investigation which is not the function of the court.
I have carefully considered the submissions of counsel on this issue of whether the court ought to have examined and accorded probative value to the mass of 1, 376 documents tendered and admitted without objection. There is no doubt that the documents form part of the legal evidence before the court which, under normal circumstances, is therefore bound to evaluate them and assess their probative value. But in the peculiar circumstances of this case where these documents were tendered across the bar by learned counsel for the Appellants who, not being their maker, was not in a position to answer questions on their contents and without affording the opposing parties the opportunity to examine and possibly test their veracity, the court cannot embark upon their evaluation so as to assess their probative value. It surely cannot do that without occasioning some miscarriage of justice or the possibility of it. As Emmanuel J. J. Toro SAN rightly submitted the admissibility of these documents is one thing and the assessment of their probative value completely another. As stated earlier, he cited a number of authorities which I consider quite apposite on the point. In MOTANYO Vs ELINWA (1994) 7 NWLR (part 356) 252 at 260 this court per Kutigi JSC (as he then was) emphasised the distinction in the following terms:-
“The High Court therefore acted properly when it admitted the documents in evidence. It must be noted at once that the legal admissibility of a piece of evidence is one thing, while the weight the court would attach to such evidence after it has been admitted is quite another thing. Similarly, the competence of a particular person to give evidence in a particular proceeding is a different thing from what weight the court will give to the evidence of such a witness.”
In BUHARI Vs INEC (2008) 19 NWLR (part 1120) 246 this court, per Tobi JSC at pages 414 -415 re-emphasised this distinction between the admissibility of a documentary evidence and the assessment of its probative value. At page 414 he said:-
“There is a clear dichotomy between admissibility of document and placing probative value on it. While admissibility is based on relevance probative value depends not only on relevance but also on proof. An evidence has probative value if it tends to prove an issue.”
An continuing at page 415 he said:-
“Second, the witnesses who tendered the documents were not the makers and so cannot be cross-examined on the contents of the documents. As cross-examination plays a vital role in the truth searching process of evidence procured by examination in-chief it relates to authenticity or veracity of the witness, a court of law is entitled not to place probative value on evidence which does not pass the test of cross-examinations …”
See also OSIGWELUM Vs INEC (2011) 9 NWLR (part 253) 425 at 451.
On this issue about the mass documentary exhibits, I have no reason to disturb the concurrent findings of the two courts below. It is apparent from the records that learned counsel for the petitioners/Appellants were labouring to complete the prosecution of the petition within the rather discomforting time frame when they tendered the mass of documents the way they did. But that desire to meet the prescribed time frame cannot be allowed and/or achieved at the expenses of the constitutionally guaranteed substantial justice. Fore the foregoing reason, I resolve this issue in favour of the Respondents.
The Appellants’ next issue pertains to whether it was proper to exclude the evidence of the PW31, 32 and 33 and the reports they tendered in evidence. This issue was comprehensibly addressed by the trial Tribunal at pages 2264 – 2279 of vol. 6 of the records. The PW31 was Mohammed Sandaji of the Department of Accountancy A.B.U. Zaria. He admitted under cross-examination that he was not a handwriting or document examiner. He was neither a forensic expert and nor was he handwriting expert. He said he was paid N150,000.00 for his engagement for the testimony. The PW32 was Musa Shu’aibu Rade, he too was paid N20,000.00 for his job of testifying for the petitioners/Appellants. And the PW33 was Abubakar Sadiq Abdullahi. He also admitted that he was neither a forensic expert or an handwriting expert and for the job of his testimony, he was also paid N20,000.00.
With respect to their credibility, the trial Tribunal stated at page 2279 of the records as follows:-
“The 3 witnesses are persons hired and paid by the petitioners who together with their team of lawyers gave their instructions as to the type of report they should produce; definitely, they cannot be neutral or objective in their report. These witnesses can be regarded as ‘persons interested’ within the meaning of Section 91 (3) of the Evidence Act.”
As I stated earlier in this judgment, the court below also embarked on some re-evaluation of the evidence to ensure that the findings of the trial Tribunal were supported by the evidence on record. On the Tribunal’s findings as to the credibility of these three witnesses the court below at page 2889 2890 vol. 7 of the record reproduced and approved the findings of the trial Tribunal.
It is settled that the assessment of the credibility of witnesses is exclusive preserve of a trial court and the attitude of an appellate court is not to interfere unless there are exceptionally strong reasons to do so. see ASANYA Vs STATE (1991) 4 NWLR (part 180) 422; POPOOLA vs ADEYEMO ( 1992) 8 NWLR (part 257) 1; ABOGEDE Vs STATE (1996) 5 NWLR (part 448) 270.
In this case, the finding of the Tribunal on the credibility of the witnesses is amply supported by the evidence of the self same witnesses under cross-examination. I cannot find any reason whatsoever to interfere with the concurrent findings of the two courts below.
Besides, the evidence of the PW31, PW32 and PW33 were in support of what was pleaded in the petition. In paragraph 11 of the petition it was pleaded thus:-
“Your petitioners state that the facts upon which the petition is predicated are as follows:
- The Ballot papers used in the Governorship election scoring the 1st petitioner and the 1st Respondent 1,133,564 and 1,334,319 votes respectively shall be subjected to forensic analysis of the finger prints, thumb impression and handwriting analysis by experts. Notice is hereby given to the 2nd Respondent to produce the said ballot papers.” (See page 17 vol. of the record).
For the purpose of this pleading the petitioners listed as item 25 their list of documents to be relied on as follows:-
“25 Forensic Analysis Report/Chart to be supplied by subpoenan Ducy team after inspection of electoral documents on the order of the Tribunal.”
At the trial rather than produce the Forensic Analysis Report/Chart as pleaded they tendered through the PW31, PW32 and PW33 Exhibits NNO, NNP – NNP2, NNQ, NNR, NNS, NNM and NNT. In its judgment, the trial Tribunal relying on some authorities reasoned and concluded as follows:-
“Relying on the above case, we are fortified to hold that the petitioners having pleaded forensic expert/handwriting analysis cannot make use of the exhibits tendered by the PW31, PW32 and PW33 same not being forensic analysis or handwriting expert analysis as pleaded by them. Accordingly, these documents are to be discountenanced as they lack any evidential value.” (See page 2274 vol. 6 of the record).
I wish to state without hesitation that this finding cannot be faulted. It is not surprising therefore that it was affirmed by the court below in its judgment at page 2287 of the record.
Again I have no reason to interfere with the above concurrent findings. The result is that I also resolve this issue in favour of the Respondents.
Let me now deal with the Appellants’ remaining issues 3, 6, 7 and 8 on the ultimate question of whether there is such quality of evidence that ought to sustain the petition. They all pertain to the issues of burden and standard of proof. The stance of the Respondents is that the allegations upon which the petition is predicated are criminal in nature, the proof of which must therefore be beyond reasonable. The Petitioners/Appellants on the other hand maintain that they are mere allegations of electoral malpractices and that should be on preponderance of evidence. The settled principle of law is that where crime is alleged in a civil proceeding, proof must be beyond reasonable doubt. See GBAFE Vs GBAFE (1996) 6 NWLR (part 455) 417; EZEONWU Vs ONYECHI (1996) 3 NWLR (part 438) 499. The Tribunal listed paragraphs 10, 11 (a)-(i), 12 (i-xiv), 14, 15,16, 17, 18 (a)-(g), 19,20,21,22,23,38,39, 48, 49 and 53 wherein criminal acts were alleged. The criminal acts alleged include stuffying of ballot papers, snatching of ballot boxes, ballot papers and other electoral materials, stealing of ballot boxes, ballot papers forms and result sheets from polling stations, destruction of ballot boxes, ballot papers, result sheets, use of firearms and violence during the election confliction of injuries and maiming of voters.
It was the submission of learned senior counsel for the Respondents that there was no proof of these allegations beyond reasonable doubt. The trial Tribunal accepted this submission of the Respondents and held that apart from these paragraphs alleging electoral offences and/or criminality what was left could not stand on their own to sustain the petition. At pages 2282 – 2283 the trial Tribunal concluded:-
“As can be seen the paragraphs which are devoid of criminality are devoid of any significance and cannot stand on their own to sustain the petition as the paragraphs where criminal allegations were pleaded are the centre of gravity to which other paragraph of the petition were attached.”
This finding was again endorsed by the court below at page 2889 vol. 7 of the records. On this issue of whether the Petitioners/Appellants proved their criminal allegations beyond reasonable doubt, I do not see any conceivable reason to disturb the concurrent findings of the two courts below.
I have taken time to look at the evidence in proof of the allegations. It is my firm view that even if the entire evidence were to be assessed on the basis of preponderance of evidence there cannot be said to such quality of evidence to sustain the petition. The trial Tribunal pointed out that the PW2, PW6, PW7 and PW8 each claimed to have witnessed evidence of electoral offences or malpractices in their Wards of their Local Government Areas. In actual fact however, each only gave evidence of what he saw at one polling unit. The Tribunal held, rightly in my view that their evidence even if accepted could not be taken to have substantially affected the entire election. The PW3, PW4, PW5, PW13 and PW15 each gave evidence of his displacement and thus inability to vote as a result of the post election violence. The trial Tribunal ruled that the evidence has nothing to do with what happened at or during the election and rejected same. The PW22 gave testimony which contradicted his earlier written deposition and the trial Tribunal rejected same on that ground. All these findings were affirmed by the court below. And having regard to the fact that they were supported by the evidence on record, I hold that I have no cause whatsoever to disturb the findings. The result is that I also resolve the remaining issues 3, 6,7 and 8 against the Appellants.
In view of the foregoing considerations, I hold in conclusion that the appeal lacks merit and same is accordingly dismissed. I make no orders as to costs.