Usman S.B. Musa V. Bello Alhaji Mohammed Gusua & Ors (2003)

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I.T, MUHAMMAD, J. C. A.

The appellant was a candidate at the April 12th 2003 National Assembly Election for a seat at the House of Representatives for the Kontagora, Wushishi, Mariga and Mashegu Federal Constituency. He contested on the platform of the Peoples Redemption Party (P.R.P) while the 1st respondent contested on the platform of the Peoples Democratic Party (PDP). At the end of the election, the 2nd and 3rd respondents returned the 1st respondent as the member elect for the aforesaid Federal Constituency.

The appellant filed a petition on the 9th day of May, at the National Assembly/Legislative Houses and Governorship Election Tribunal for Niger State, sitting at Minna (the Tribunal) challenging the return of the 1st respondent as duly elected. The petition was premised on the following salient grounds that:-

(a) “1st respondent was not qualified to contest the election of 12th April, 2003 on the ground that he presented forged certificates to the 2nd respondent.

(b) all the documents submitted to the 2nd respondent by the 1st respondent as his educational qualifications were forged documents/certificates, i.e.-

(i) certificate of primary education No. 012291 purportedly issued by Sokoto State Ministry of Education on 10th June, 1979;

(ii) SSCE result allegedly issued by Ministry of Education Sokoto in 1992;

(iii) National Diploma certificate purportedly issued By the Kaduna Polytechnic in August, 1988;

(iv) Notification of Result allegedly issued by Usman Dan Fodio University, Sokoto in 1997;

(v) Certificate of Exemption from National Youth Service.

(c) the 1st respondent did not finish from any of the above listed Institutions as claimed by him,

(d) the 1st respondent was not qualified to contest the 12th April National Assembly Election on the ground that he did not have the required educational qualifications of School Certificate

(e) the statutory declaration of age Form submitted to the 2nd respondent for his age qualification was forged and not genuine;

(f) the 1st respondent was not qualified to contest the election of 12th April, 2003 because he did not pay his tax for 3 years immediately preceding the election as and when due

(g) that the appellant and not the 1st respondent won the election by majority of lawful votes,”

The appellant as petitioner at the Tribunal prayed for the following reliefs and the Tribunal should hold that:

(J) 1st respondent was not qualified to contest the 12th April, 2003 National Assembly Election into the Federal House of Representatives.

(2) the declaration by the 2nd respondent that the 1st respondent is the winner of the election is null and void.

(3) the petitioner is the winner of the election and be so returned having scored the majority of lawful votes; or, in the alternative;

(4) Order for a bye election in the Mariga, Kontagora, Wushishi and Mashegu Federal Constituency.

At the trial stage, the appellant testified and called three witnesses. The 1st respondent called one witness. The Tribunal delivered its judgment on the 26th day of June, 2003 where it dismissed the petition filed by the appellant. Dissatisfied with the Tribunal’s decision, the appellant filed this appeal.

In compliance with our Practice Direction No.2 issued by the Hon. President of this Court, parties filed and exchanged briefs of argument. The appellant formulated three Issues for our determination, viz:-

“(i) – Whether the decision of the Hon. Tribunal is not perverse having regard to the preponderance of evidence (oral and documentary) before it.

(ii) Was the Hon, Tribunal right to given (sic) judgment Without considering address of counsel as contained At page 20-35 of the record?

(iii) Was the Tribunal right when it held that there was only one set of document before it without consideration of the contradictions in the particulars submitted to 2nd respondent as contained in the exhibits before the Tribunal?

In his brief, the 1st respondent formulated two Issues “for determination, viz:-

“(i) Whether the Honourable Tribunal failed to consider the issues raised in the address of counsel, and if it did not whether same would invalidate the trial

(ii) Whether having regard to that totality of evidence before It, the Tribunal was right in coming to the decision that the petition was starved of cogent evidence and that the appellant did not satisfy the requirement of Proof of his allegations of forgery of certificates and Other documents.”

A notice of preliminary objection was filed by the 1st respondent and argument thereon embedded in the brief. The 2nd and 3rd respondents filed a joint brief. Three Issues were set out for our consideration. The issues are:-

“(i) Whether or not the Tribunal is right to have dismissed the petition, having regard to the evidence placed before it

(ii) Whether or not the Tribunal properly evaluated every piece of evidence placed before it?

(iii) Whether or not ground ii of the appeal is competent?

Before considering the above issues, it is pertinent to take a look at the Notice of Preliminary objection filed by the 1st respondent: This objection is as follows:-

“TAKE NOTICE that the 1st respondent herein named intends at the hearing of this appeal, to rely upon the following preliminary objection, notice whereof is hereby given to you:

Grounds I & III of the Notice of Appeal filed on 15th Day of July, 2003, is incompetent, incurably defective, unknown to law, and robs the honourable court its jurisdiction.

AND TAKE NOTICE that the grounds/particulars of the said objection are as follows-

1. Grounds (1) and (iii) of the Notice of Appeal are grounds of fact, or at best, of mixed law and fact.
2. No leave, either of the trial Tribunal or this Honourable Court was either sought or obtained before the grounds were filed,”

Learned counsel for the 1st respondent argued in his brief that grounds (ii) and (iii) of the grounds of appeal are grounds of fact, and that leave of either the Tribunal or this Court was neither sought nor obtained before they were filed and are thus, incompetent and liable to be struck out. Several authorities were cited in support e.g Sections 241(1) and 242(1) of the 1999 Constitution; Oluwole V. LSDPC (1983) 5 SC 1.; Ifediorah V. Umeh (1988) 2 NWLR (Pt.74) 5, to mention a few.

In his reply brief, learned counsel for the appellant submitted that the preliminary objection was never developed in the brief as 1st respondent gave an indication only of the preliminary objection. The preliminary objection, he urges this Court, should be deemed abandoned. Learned counsel’s alternative submission is that when an appeal is of right, no leave is required regardless of whether the grounds of appeal are of mixed law and facts or of facts simpliciter. The appeal is against a final decision of the National Assembly Election Tribunal and Section 246(1)(3) of the 1999 Constitution has made provision for appeal as of right from the Tribunal’s decision. He urged the Court to overrule the preliminary objection.

Let me observe that at the hearing stage of this appeal, learned counsel for the 1st respondent did not move this Court on his notice of preliminary objection. It is trite law that where preliminary objection has not been moved, it is deemed abandoned. See Ajibade v. Pedro (1992) 5 NWLR (Pt.241)2371; NHRI v. Ayoade (1997) 11 NWIR (Pt, 741) 257; Jadesimi v. Okoete (1986)1 NWLR (Pt. 6) 255; Onyekwuliye v. Animashaun (1996) 3 SCNJ 24, Accordingly, the preliminary objection filed by the 1st respondent is deemed abandoned and struck out.

I will now consider the appeal in line with the issues formulated by the appellant. Learned counsel for the appellant treated’ issues Nos. I & 3 together. I will treat them as such. Learned counsel submitted that the Tribunal failed to discharge the onerous duty of evaluating the evidence placed before it before coming to conclusion. He cited Assam v, Okposun (2001) FWLR (Pt.56)630 at 649. Failure to do so led the Tribunal to a conclusion that is perverse. Learned counsel urged this Court to evaluate the evidence placed before the Tribunal, relying on the case of Ofondu v. Niwugho (19993)2 SCNJ 73.

Learned counsel for the 1st respondent considered appellant’s issues 1 & 3 in his issue ii. Learned counsel submitted on this issue that the appellant contended that the Tribunal did not evaluate the evidence of witnesses. He however raised Issue No. (i) to challenge the decision of the Tribunal as to whose favour the preponderance of probabilities tilts. He also raised issue NO.(iii) to challenge the holding of the Tribunal that only one set of documents was before the Tribunal. Appellant did not complain about evaluation of evidence but about whose favour the aggregate weight of evidence leaned.Learned counsel argued further that the onus was on the appellant who alleged the commission of crime of forgery to prove same beyond reasonable doubt. He cited Sections 135 and 138 (1) & (2) of the Evidence Act, 1900.

Learned counsel for the 2nd and 3rd respondents in his brief of argument submitted that the appellant had failed woefully to prove beyond reasonable doubt, the alleged crime of forgery in relation to exhibits A, B, C, D, E, H and other relevant documents submitted to INEC by 1st respondent. The petition was as such rightly dismissed by the Tribunal for want of evidence. He cited Sections 137 and 138(1) of the Evidence Act, 1990 and a host of decided cases including Modupe v The State (1988) 4 NWLR (Pt.87) 30 at 137; Elias v. Omobare (1982)5 SC 25 at 46-47; Nwobodo v. Onoh (1984)1 SCNLR 1.

The main and precise challenge against the lower Tribunal’s decision as contained in issues (i) & (iii) as raised by the appellant is evaluation of evidence placed before it. The only way an appeal court will be able to assess whether there was evaluation of evidence or not is to consider the whole proceedings of the first instance court where such evidence was led. I had the privilege of going through the whole record of the lower tribunal and I made the following findings:

(a) The lower Tribunal gave a summary of the evidence led by the Petitioner/appellant and that of the 1st respondent: This is contained on pages 60-62 of the record of appeal

(b) The lower Tribunal, at the end, gave its assessment (evaluation) of the evidence placed before it. Below is what the lower Tribunal said:-

“Conclusively this petition is starved of cogent evidence. It is vexatious, malicious, unmeritorious, insufficient, (sic) spurious all aim (sic) and a calculated attempt by the petitioner to blackmail 1st respondent, in the bid of the petitioner to vent his anger on 1st respondent’s victory; it is therefore dismissed.”

I think the time honoured principle of law relating to the duty of a trial court in respect of evidence placed before it is reiterated once more by the Supreme court in the case of Adeleke v. Iyanda (2001)13 NWLR (Pt.729) 1 at page 20. Uwaifo JSC stated thus:-

“A trial judge has a primary duty to receive admissible evidence, assess the same, give it probative value and make specific findings of fact thereon. He must not impair the evidence either with his personal knowledge of matters not placed and canvassed before him, or by inadequate evaluation and should endeavour to avoid vitiating the case presented by the parties through his own wrongly stated or applied principle of law. He must carefully examine the evidence and clearly understand and appreciate the issues he has to resolve in the case, and then proceed to resolve them. His duty is to reach a decision only upon the basis of what is in issue and what has been demonstrated upon The evidence by the parties and is supported in law. See Borno Holdings Ltd v. Bogoco (1971)1 ALL NLR 324 at330; Adeniji v. Adeniji (1972)4 SC 10 at 17; Shodeinde v. The Registered Trustees of the Ahmadiyya Movement-In-lslam (1983)2 SCNLR 284 at 320. When he fails in this regard, it is an invitation to the appellate court to intervene and if the appellate court can make its own findings from the evidence available, it will interfere with the findings of the trial Judge since it is in as good a position as the trial court on that score: See Fatoyinbo v Williams alias Sanni (1956) SCNLR 274 at 275; Lawal v. Dawodu (1972)1 All NLR (Pt.2) 270 at 286; Okpaloka v Umeh (1976) NSCC (Vol. 10) 519 at 533.”

I have perused the printed record of appeal. Appellant’s issues (i) & (iii) seemed to have stemmed from grounds (i) & (iii) of the grounds of appeal.

These grounds provide as follows:-

(i) “The judgment is against the weight of evidence.”

(iV) “The Trial Tribunal erred in law when it failed to properly evaluate evidence before it.

“PARTICULARS:

Admitted documentary evidence was not properly ascribed probative value (sic).”

While assessing the evidence of the witnesses called by the appellant and the 1st respondent, the learned Chairman of the lower Tribunal stated inter alia;-

“PW1 one Mohammed Sidi Kabir is from Registry Department of usman Dan Fodio University Sokoto, he is’ in charge of records he tendered Exhibits A Folios A1 – A13 to show that 1st respondent is a Graduate of the said University. Similarly, Abdul Ganiyu Abdulsalami who is the Academic Affairs Officer of Kaduna Polytechnic, he also tendered Exhibits BB1 – BB 16, all to show that, 1st respondent got his Diploma certificate from the said Kaduna Polytechnic. Even the primary six certificates. The SSCE Certificate tendered have not been controverted instead, the NYSC exemption certificate coupled with Exhibits F1-F2 i.e confirmed by the letter written to National Youth Service Corps Headquarters Abuja …

There is no other oral version before this Tribunal, other than the testimony of DW1, father of the Accused person, who from the Tribunal assessment (sic) must be about 70 years old, hence the Tribunal has no option but to believe the evidence of DW1 … This Tribunal therefore believed the evidence of DW1 … Now this Tribunal therefore holds (sic) that 1st Respondent was qualified to contest the election for The Federal House of Representatives Seat of Kontagora, Wushishi, Mashegu and Mariga Federal Constituency held on 12th day of April, 2003… All the documents tendered (sic) i.e Exhibits A, A1- A13, BB1-BB16 tendered in this case By PW 1 & PW 2 who are witnesses of the petitioner only buttress the fact that 1st respondent holds BSc Economics from Usman Dan Fodio University Sokoto. This has gone a long way to weaken the case of the petitioner. There is no other oral and documentary version in respect of academic qualification of the 1st Respondent, than that he holds BSc Economics, and as such he is qualified to have contested the election of 12th April, 2003.

I consider all the above excerpts from the judgment of the lower Tribunal to be proper evaluation of the evidence placed before the trial Tribunal. Such evidence assessed had to do with the credibility of the witnesses who testified before the lower Tribunal. The trite position of the law is that if it is manifest that in the final analysis an issue will turn out to be on the credibility of witnesses, the trial court is best entitled to do that assignment. In the instance case, the lower Tribunal considered what each of the witnesses said, the documents tendered and drew inferences and conclusion therefrom. In addition,the trial Tribunal was of the view that the allegation on the criminal aspect of the petition was never proved as required by law. In the circumstance, I find it difficult to disturb the decision of the lower Tribunal on that aspect alone. See: Iwenufo v. Iwenufo (1975) 9-11 SC; 79; Wolechem v. Gundi (1981) 5 SC291; Ebba v. Ogodo (1984).

Issues Nos. (i) & (iii) of the appellant’s issues for determination are hereby decided against the appellant.

On issue No. (ii), learned counsel for the appellant submitted that the Tribunal failed to consider counsel’s addresses and the failure led the Tribunal to come to erroneous belief that the petition was hinged on Section 65(1)(b) of the 1999 Constitution and that in any event, counsel’s addresses formed part of the record.

Learned counsel for the 1st respondent submitted that it is not true that the Tribunal did not consider the address of the parties. It is also submitted that cases are not decided on the address of counsel which cannot take the place of credible evidence. Learned counsel cited among other, the case of Dalyop v. Oradiegwu (2000) 8 NWLR (Pt.669) at page 421.

Learned counsel for the 2nd and 3rd respondents argued that the appellants failed to state whose address the Tribunal failed to consider before its judgment. The failure by the Tribunal to consider counsel’s address is not fatal to the judgment of the Tribunal. He cited the case of Yamusa v Aromeh (2001) FWLR (Pt.74)328 at 335.

There is no doubt that counsel’s addresses are designed to assist the courts.

Cases are not decided on the addresses of counsel but on credible evidence,so no amount of forensic advocacy and brilliance in final addresses can make up for the lack of evidence to prove the fact in issue. What is important always, is the resolution of the point raised by the argument or submission. In the case of Plateau Publishing Co. Ltd & 2 Drs v. Adophy (1986) 4 NWLR (Pt.34), 205 at page 227, Uwais, JSC (as he then was) observed:

“If counsel speaks trash or his argument makes no sense the court is not under any obligation to spend even one moment appraising what is nonsensical or unintelligible. ”

See further the case of lgwe v. Alvan Ikoku College of Education, Owerri (1994) 8 NWLR (pt. 363) 459 at 481; Offor v. The State (1999) 12 NWLR (Pt. 632) 608 at 624.

For this reason, issue No. (ii) of the appellant’s issues, has no merit and it has failed.

In the final result, I find no merit in this appeal. The appeal is hereby dismissed. Costs in this appeal is assessed at =N= 10, 000.00 against the appellant and payable to the respondents.

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Other Citations: (2003)LCN/1513(CA)