Yahaya Giwa & Anor. V. Faruk Musa Dosara & Ors. (2010)

LawGlobal-Hub Lead Judgment Report

AHMAD O. BELGORE J.C.A,

This is an appeal from the decision of the National Assembly, Governorship and Legislative Houses Election Tribunal, holden at Gusau, Zamfara State (hereinafter referred to as “The Tribunal”). The decision is contained in its judgment of the 27th day of July, 2007 where the Tribunal found for the petitioners that they were unlawfully excluded. The petitioners there are the 1st and 2nd Respondents herein. The 1st and 5th Respondents before the Tribunal are the two appellants herein. The 2nd, 3rd and 4th Respondent before the Tribunal are now the 3rd, 4th and 5th Respondents, respectively, herein.

At the Pre-Hearing proceeding before the tribunal, parties agreed that the sole issue for determination was whether the 1st respondent herein was unlawfully excluded from the election of April after having been validly nominated by the 2nd respondent.

The 1st respondent gave evidence by adopting his written statement on oath and was subjected to cross-examination. He also tendered in evidence, a booklet of BALLOT PAPERS for ZAMFARA MARADUN 1 starting from serial number SC063874942 to number SC063875000 and a letter addressed to The Electoral Officer, Independent National Electoral Commission, Maradun LGA Office, Maradun dated 14/4/2007. The two documents were admitted in evidence and marked as Exhibit A and Exhibit B respectively. The written statements on oath of the 1st respondent; and Aliyu Babangida Mohammed Maradun; the 1st appellant; and the 3rd respondent, were admitted as Exhibits C, D, E, and F respectively.

As I stated earlier in this judgment, the tribunal found that the 1st respondent was unlawfully excluded from the election, it therefore annulled the election and ordered for a fresh election.

Briefs of argument were filed and exchanged. The 3rd to 5th respondents did not file their brief. They filed a notice of intention to adopt the Appellants’ Brief of Argument. When the case came up for hearing, the appellants applied to withdraw both the affidavit challenging the record of appeal and notice of intention to rely upon preliminary objection and the two processes were accordingly struck out.

Three issues were identified by the appellant as arising for determination in this appeal, and these are:-

(a) Whether the Tribunal below was right in holding that at the close of the case for the petitioners the petitioners had established a prima facie case of non inclusion of the name and logo of the Peoples Democratic party in the ballot papers used to conduct the election of 14/4/07 as to shift the onus of proof on the respondents.

(b) Subject to resolution of issue (a) above, whether the tribunal below breached the constitutional right of the appellants to fair hearing;

(c) Whether on the evidence before the tribunal below it was right in holding that the 1st respondent was unlawfully excluded from the election held on 14/4/07 for Maradun 1 Constituency.

The 1st and 2nd Respondents identified two issues for determination, viz : –

1. Whether the appellants were denied fair hearing by the Tribunal
2. Whether the tribunal was right in nullifying the election of 14th April, 2007 as it affects Maradun 1 constituency, and the election and return of the 1st respondent/appellant by reason of non-inclusion of the symbol of the 1st petitioner’s political party on the ballot papers used for the election.

In this judgment, I will treat the appeal on the basis of the issues formulated by the Appellants, but I will consider Issues (b) first since it borders on the constitutional right of the appellants. It is a strange approach for the appellants to regard the holding by the tribunal that the burden of proof had shifted to them as a violation of their constitutional right under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to “The Constitution”). I view this issue as a grand design and a ploy to delay the course of justice. This is so because a court or tribunal can hold that evidential burden in a case has shifted to either of the parties depending on the pleadings and the progress of evidence adduced in a trial. What the tribunal said was that the 1st and 2nd respondents had made out a prima facie case and that the burden of proving the affirmative that the name and logo (symbol) of the 1st respondent’s party were on the ballot papers used for the election of the 14th April, 2007 shifted to the appellants. I do not see, by any stretch of imagination, how this has infringed on the right of the appellants to fair hearing under Section 36 of the Constitution. In EDEANI NWAVU & ORS V. CHIEF PATRICK SUNDAY OKOYE & ORS [2008] 12 S.C.N.J. 460 (pt. II), it was held that:-

“Evidential burden may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage. The evidential burden rests initially upon the party bearing the legal burden, but as the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail if no evidence at all or no further evidence is adduced by either side – Section 136 of the Evidence act”.

It was further held by the Supreme Court that:-