3PLR – AHMED JAMILU SHABEWA & ANOR V. UMAR AHMED SULEMAN & ORS

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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AHMED JAMILU SHABEWA & ANOR

V.

UMAR AHMED SULEMAN & ORS

IN THE COURT OF APPEAL OF NIGERIA

ON MONDAY, THE 16TH DAY OF MAY, 2011

CA/J/EP/HR/80/2012

3PLR/2011/7 (CA)

 

BEFORE THEIR LORDSHIPS

MOHAMMED LADAN TSAMIYA, JCA

ALI ABUKAKAR BABANDI GUMEL, JCA

UCHECHUKWU ONYEMENAM, JCA

 

BETWEEN

1. AHMED JAMILU SHABEWA
2. CONGRESS FOR PROGRESSIVE CHANGE (CPC) – Appellants

AND

1. UMAR AHMED SULEMAN
2. THE INDEPENDENCE NATIONAL ELECTORAL COMMISSIONER, GOMBE STATE INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. THE RESIDENT ELECTORAL COMMISSIONER, GOMBE STATE INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. THE RETURNING OFFICER, DUKKU/NAFADA FEDERAL CONSTITUENCY, INDEPENDENT NATIONAL ELECTORAL COMMISSION
5. HON. UMAR ABUDULLAHI – Respondents

REPRESENTATION

Mr. Mahnud A. Magaji with Miss M. Abogun, Mr. M. Umar, Mr. U. N. Odonwodo and Miss Aisha Galadima – For Appellant

AND

1st Respondent – Mr. Z. M. Umar with Mr. A. H. Uthman

2nd-4th Respondents – Mrs. Halita Raje

5th Respondent – Mr. Efut Okoi – For Respondent

MAIN ISSUES

ELECTION  MATTERS – UNLAWFUL EXCLUSION FROM ELECTION:- What a Petitioner who claims that he was validly nominated by his  party but was unlawfully excluded from the election needs to plead and prove by evidence in his petition

ELECTION MATTERS – PLEADINGS:- Filing an undated application – Legal effect

EVIDENCE – BURDEN OF PROOF:- On whom lies the burden of proof in civil actions

EVIDENCE – PROOF:- Plaintiff – Whether can rely on the weakness of the case of the defence in proving his case

PRACTICE AND PROCEDURE:- Whether the decision of the Court of Appeal on a concerned and relevant issue is binding on the Federal High Court

MAIN JUDGMENT

ALI ABUBAKAR BABANDI GUMEL, J.C.A (Delivering the Leading Judgment):

This is an appeal against the judgment of the National and State Houses of Assembly Elections Petitions Tribunal established for Gombe State delivered on 17th March, 2012 in election petition No: GMS/EPT/HR/1/2012.

Upon this election petition, the Appellants herein as the petitioners sought for the following 5 reliefs.

They are:-

1. That the 1st Petitioner, the Candidate of the 2nd petitioner was validly nominated but was unlawfully excluded from the by-Election.
2. That the By-election of 17th December, 2011 and return of the 1st Respondent be nullified and/or set aside.
3. An Order mandating the 2nd-4th Respondents to forthwith, list the name of the Petitioners and to timeously conduct a fresh election to Dukku/Nafado Federal Constituency of Gombe State in the House of Representatives.
4. That the election was invalid by reason of non – compliance with the Provisions of the Election Act.
5. That the election was void –

The grounds for the foregoing reliefs are:-

(a)     That the 1st Petitioner, the candidate of the 2nd Petitioner of the By-Election of 17th December, 2011 was validly nominated but was unlawfully excluded from the By-Election by the 2nd and 4th Respondents.

(b)     That the 1st petitioner was duly qualified to contest the said By-Election having satisfied all the constitutional requirement, party guideline and Electoral guideline.

These grounds are supported by a number of averments. Series of witness statements on oath were scheduled for presentation along with documentary exhibits to prove the averments. Upon being served with the petition, the Respondents filed their respective replies. At the conclusion of pleadings, pre-hearing proceedings commenced. It was of this stage that the 1st respondent to the Petition filed an undated application by way of a motion on notice in the nature of a preliminary objection seeking that the petition of the appellants be struck out for being on abuse of Court Process.

The grounds for the application are:-

(a)     That there exists of the Federal High (court 3 Abuja), a suit (Congress for Progressive Change vs. Independent National Electoral Commission (FHC/ABJ/CS/992/2011) filed (on 7th December, 2011) by the 2nd Petitioner herein against the 2nd Respondent herein.

(b)     The subject-matter and main Prayers of FHC/ABJ/CC/992/2011 referred to above are on all fours with this Petition.

It is supported by a 22 paragraph affidavit deposed to by one Uthman Abdul-Hakim, a legal practitioner in the firm of Taufiq Law Office, Gombe, Counsel to the 1st Respondent/Applicant. There are number of copious documentary exhibits attached to this affidavit.

The petitioners/respondents filed on 11 paragraph affidavit to oppose this application. It was deposed to by one H.M. Tukur’s legal practitioner in the employment of Messrs. Mahmud and Co., counsel to the petitioners/respondents. The 2nd to 4th respondents on one hand and the 5th respondent on the other did not file any response to this application.

Issues having been duly joined, respective learned Counsel made oral arguments and submissions. Earlier all Counsel in the matter had agreed that the ruling on this application shall be made a part of the judgment on the substantive action in the petition. The matter proceeded to a full blown trial. Two witnesses (PW1 and PW2) were led in evidence to adopt their respective written statements on oath and to tender some documents. All the respondents rested their cases on the petitioners’ case and did not call any oral evidence. The tribunal took oral addresses and reserved judgment.

In a very well considered judgment, the Tribunal concluded that:-

“… all the ingredients of an abuse of process of this tribunal or court have been satisfactorily established in this petition.”

Against this crucial finding the Tribunal proceeded to accordingly strike out the Petition.

In its effort to do a very thorough job on the dispute between the parties herein, the Tribunal proceeded ex. abundante cautela, to determine the petition on its merits. After an overview and full appraisal of the evidence before it, the Tribunal inter alia decided thus:-

“There are many hanging questions that the petitioners have left unanswered in their guest to ventilate their grievance using the medium of this Petition …

The fate of the political party is obviously bound with that of its disqualified candidate because one cannot exercise the right of participating in an election without the other.”

(See page 293 of the record of appeal).

Upon this and other related findings, the Tribunal dismissed the petition for lacking in merit. The within named Appellants were dissatisfied with the order dismissing the Petition. They appealed to this Court in of notice of appeal dated 4-04-2012 but filed on 5-04-2012. This appeal is predicated on 7 grounds of appeal with very copious particulars.

To argue the appeal, the Appellants filed a brief of argument dated 18/04/2012. In this brief, the Appellants formulated and argued the following 5 issues. They are:-

(a)     Whether the Trial Tribunal was right, when it struck out the petition for abuse of process?

(b)     Whether or not the Judgment/order of the Court of Appeal (Appeal No: CA/J/HR/172/2011), delivered on 21st October, 2011, bars the plaintiffs from participating in the fresh election ordered?

(c)     Whether the 2nd – 4th Respondents were right, in refusing, rejecting and/or excluding the duly nominated candidate of the 2nd Appellant from participating in the fresh election ordered by the Court of Appeal?

(d)     Whether the Trial Tribunal was right when it refused to admit in evidence documents earlier pleaded in the Petitioner/Appellant’s Petition?

(e)     Whether or not the Tribunal was right when it refused to nullify the election on ground of exclusion?

To respond learned Counsel to the 1st Respondent filed a brief of argument dated 27/04/2012 in which he formulated and argued the following 3 issues.

They are:-

(a)     Whether the lower Tribunal was right to hold that the petition was on abuse of court process (distilled from grounds 1 and 4 of the grounds of appeal).

(b)     Whether there was a valid nomination and unlawful exclusion (distilled from grounds 2, 3 and 6 of the grounds of appeal).

(c)     Whether the lower Tribunal was bound to admit in evidence every pleaded document (distilled from ground 5 the grounds of appeal).

In another response, learned Counsel to the 2nd – 4th Respondents filed a joint brief of argument dated 30/04/2012. In this brief, learned Counsel formulated and argued 5 issues thus;-

1. Whether or not the Tribunal was right in upholding the preliminary objection of the 1st Respondent thereby striking out the Petition
2. Whether the Appellants had proved his case at the Tribunal to entitle them to the reliefs sought.
3. Whether or not the Judgment/Order of the Court of Appeal in (Appeal No: CA/I/EP/HR/172/2011), delivered on the 21st October, 2011 by the court of Appeal sitting in Jos, bars the Appellants from participating in the fresh election ordered.
4. Whether or not the 2nd petitioner/Appellant has the night to change or substitute their candidate for the fresh elections ordered by the Court of Appeal, when time within which to do have expired and their candidate disqualified and barred from contesting the fresh elections.
5. Whether or not the Tribunal was right when it refused to nullify the election on ground of exclusion

No brief was filed on behalf of the 5th Respondent; learned Counsel to the Appellants filed a reply brief dated 2/05/2012 as well as another reply brief to the joint brief of the 2nd-4th Respondents dated and filed on 7/05/2012.

At the hearing of the appeal before us on 14/5/2012 respective learned counsel each identified, adopted and relied on their respective briefs of argument. While learned counsel to the Appellants urged on us to allow the appeal and set aside the decision of the Tribunal, learned counsel to the 1st Respondent on the one hand and learned Counsel to the 2nd – 4th Respondents on the other, each urged on us to dismiss this appeal and affirm the decision of the Tribunal delivered on 17/05/2012. Learned counsel to the 5th Respondent, having failed to file a brief of argument, did not have anything to urge on us with respect to this appeal.

Before going into the issues for the determination of this appeal, I think it is important to at this stage underscore some of the key and cardinal facts surrounding the dispute between the parties herein. It is clear to me that certain basic facts appear to stand out as established and put beyond per adventure. I will put them across by way of a narration.

The 5th Respondent herein Mr. Umar Abdullahi was the candidate of the 2nd Appellant (CPC) during the 26-04-2011 general election for the Dukku/Nafada, Federal Constituency of the House of Representatives. He contested that election along with other candidates of other political parties. The 1st Respondent herein, Mr. Umar Ahmed Sule was among such other candidates.  He was sponsored by the PDP. Mr. Umar Abdullahi was declared by the 2nd Respondent herein INEC as the winner of that election with 48, 323 votes. Mr. Umar Ahmed Sule of the PDP was aggrieved by the declaration of the result of that election and return of Mr. Umar Abdullahi as the winner. Against this grievance, Mr. Sule petitioned the then National and state Houses of Assembly Elections Tribunal established for Gombe state in petition No:- GMS/EPT/HR/2/2011. This Petition was upheld election of Mr. Umar Abdullahi was declared null and void because it was established that he lacked the requisite minimum educational qualification to participate and contest in that election. That Tribunal further ordered INEC to conduct afresh election within 3 months for the Dukku/Nafada Federal Constituency.

Mr. Umar Abdullahi was aggrieved by this decision and he appealed to the court of Appeal in Appeal No: CA/J/EP/HR/172/2011. In a judgment delivered on 21-10-2011, the court of Appeal dismissed that appeal and affirmed the judgment of the then Tribunal.

The court of Appeal further ordered that because Mr. Abdullahi had not been qualified to contest the 26/04/2011 general election he was disqualified from contesting in the re-run election. INEC was ordered to conduct within 90 days from 21-10-2011.

Against this background, INEC organized and conducted the court ordered election on 17th December, 2011, amongst 4 candidates of 4 political parties.

The candidates for that election were:-

(a)     Umar Ahmed Suleiman (1st Respondent) – PDP

(b)     Mohammed A. Rasheed – ANPP

(c)     Ramatu Ahmed Yakubu – LP

(d)     Babayo Aliyu El-Nafaty – SDMP

At the end of the election INEC declared Umar Ahmed Suleiman of the PDP as the winner and duly elected candidate for the Dukku/Nafada Federal constituency. He was declared and returned winner with 96, 306

The 1st Appellant herein, Ahmed Jamilu Shabewa had expected to participate in the court ordered re-run election as the candidate of the 2nd Appellant, herein (CPC). According to the 1st Appellant had done all that was necessary to enable INEC to put him on the ballot for the election. When his name was not presented to the electorate he now claims to have been unlawfully so excluded in the Court ordered re-run election. It was upon this grievance he filed the current Petition which was struck out and dismissed. It was the striking out and dismissal of the petition on unlawful exclusion that we now have this appeal.

Before I go into the issues formulated for the determination of this appeal, I wish to quickly bear it in mind and also disabuse the minds of respective learned Counsel. Learned Counsel to the Appellants appears to be working or operating under a mistaken belief that there was some kind of a preliminary objection argued in the 1st Respondents brief of argument, particularly of paragraphs 2.01-2.02 at Pages 5 and 6 thereof, seeking to challenge the competence of some of the grounds of appeal herein. This position of learned Counsel, Mr. Magaji for the Appellants in the first part of his reply brief to the 1st Respondents brief of argument is not anchored on any firm foundation. I say so because there is nowhere in paragraphs 2.01 to 2.02 in the 1st Respondents, brief of argument that the words “preliminary objection” were used. Though arguments in the nature of preliminary objection were made of pages 5 and 6 no proper preliminary objection could have raised and argued as envisaged under Order 10 r. 1 of the Court of Appeal rules 2011. Also, no mention was made of any preliminary objection on behalf of the 1st Respondent by learned counsel Mr. Umar. I therefore take it as fully settled that no preliminary objection was validly and properly raised and argued in this appeal. Any reference to that is misleading and must be discountenanced.

In arguing his first issue learned Counsel to the Appellants began by referring to the Supreme Court decision in UMEH v. IWU (2008) All FWLR (Pt.418) 362 at 393 where it was decided that to sustain a charge of abuse of process in a suit there must be a multiplicity of suits between the some parties on the same subject matter on the same issue. He added also that these 4 variables must co-exist together in unity. Against this foundation, learned counsel did his analysis and review of the facts and circumstances of this matter against those 4 concurrent variables. And while ref erring to the facts and circumstances in suit No; FHC/ABJ/CS/992/2011, learned counsel explained and submitted that the 2 actions could not be an abuse of process against one another because they are not the same in all material respects.

In a further thorough exercise learned Counsel referred to a number of decided cases and made a detailed distinguishing of all the relevant features of the 2 matters in issue and argued that the action before the Federal High Court is purely a pre-election matter which seeks for declaratory and injunctive reliefs with a view to ultimately achieving the effect of compelling INEC to allow the 2nd Appellant herein to include its candidate for the Court ordered election pursuant to the judgment delivered on 21/10/2011. He added that the conduct of the 2nd to 4th Respondents herein prior to the conduct of the fresh election is what led to the accrual of the cause of action in suit No: FHC/ABJ/CS/993/2011 while the election petition that led to this appeal was filed after the Court ordered election and by a Person who felt that he ought to have been included on the ballot for that election but who was not a party to the matter before the Federal High Court. With all these in view, learned Counsel maintained that there is no nexus between the subject matters of the respective suits and could therefore not have been an abuse of process against one another. He urged this Court to hold that the lower Tribunal grossly misconceived the concept and principle of abuse of Court process and also misapplied it to the facts and circumstances of this appeal and Proceed to resolve this issue in favour of the Appellants.

I have carefully read and considered the entire responses of the Respondents in their arguments and submissions on this issue and the very detailed consideration of the issue by the Tribunal and I remain of the view that both the Tribunal and respective learned counsel to the Respondents could not be right to in the circumstance that all the ingredients of abuse of court process have been satisfactorily established in this petition. Ironically even all the decided cases referred to in the Judgment of the Tribunal and in the briefs of the Respondents re-enforce, rather than derogate, the submissions of Mr. Magaji on behalf of the Appellants. I am more inclined to accept and uphold the submission of learned counsel Mr. Magaji tor the Appellants, that the action instituted by the Appellant herein as the plaintiff before the Federal High court is in the nature of a pre-election matter, even though not properly so-called, in contemplation of the then yet to hold Court ordered re-run election while the Petition in this appeal was as result of the conduct of the re-run election on 17/12/2011. I hereby so hold that the 2 actions did not constitute on abuse of process against each other and ought not to be so decided by the Tribunal. This issue must in the circumstance be resolved in favour of the Appellants and is accordingly so resolved.

The 2nd and 3rd issues formulated by the Appellants are inextricably related and tied to one another in view of the peculiar facts and circumstances of the instant appeal. For convenience and expedience, I am of the view that it is better for them to be taken together. I accordingly proceed in that manner.

I have carefully read and considered all the arguments of respective learned counsel on these issues and I am impressed by their depth and quality. They could be of assistance meaningfully towards resolving the questions in the concerned issues. However, in view of my decision above that there is no abuse of court Process in the circumstance of this appeal and the action instituted on behalf of the 2nd Appellant in suit No: FHC/ABJ/CS/992/2011. It is an action by way of originating summons. It is still pending. A decision on it is being awaited.

For purposes of clarity it is for the determination of the following 3 questions they are:-

1. Whether the Fresh Election into the Dukku/Nafada  Federal Constituency (House of Representatives.) of Gombe State, Nigeria, as ordered by the National/State Assembly Election Petition Tribunal in PETITION NO: GMS/EPT/HR/2/2011 in its judgment dated 24th August, 2011, between Umar Ahmed Sule & People Democratic Party vs. Umar Abdullahi; Congress for Progressive Change (CPC): Resident Electoral Commissioner, Gombe State; and the Returning Officer, Dukku/Nafada Federal Constituency which was affirmed by the Court of Appeal, Jos Judicial Division, in its Judgment in APPEAL No: CA/J/EP/HR/172/2011 delivered on the 21st October, 2011, does not contemplate the submission of list of candidates and their affidavits by Political Parties including the Plaintiff?
2. Whether the Judgment/order of both the  National state Assembly Election Petition Tribunal in petition No: GMS/EPT/HR/2/2011 in its Judgment dated 24th August, 2011, between Umar Ahmed Sule & Peoples Democratic Party Vs. Umar Abdullahi; Congress for Progressive Change (CPC): Resident Electoral Commissioner, Gombe State; and the Returning Officer, Dukko/Nafada Federal constituency which was affirmed by the court of Appeal Jos Judicial Division in its Judgment in Appeal No: CA/J/EP/HR/172/2011 delivered on the 21st October, 2011, bars the Plaintiff from participation through the nomination of a candidate in the said Fresh Election ordered?

Whether the disqualification of the candidate, Umar Abdullahi nominated by the ‘Plaintiff for the election of the Dukku/Nafada Federal constituency (House of Representatives) of Gombe State held on the 26th April, 2011 by the National/state Assembly Election Petition Tribunal/court of Appeal by Judgment/Orders dated 24h August, 2011, and 21st October, 2011, respectively affects or bars the participation of the Plaintiff or disentitles the plaintiff from nominating another candidate to contest -the fresh election ordered in respect of Dukku/Nafada Federal Constituency?

Upon the determination of the above 3 questions or issues, the 2nd Appellant as the Plaintiff in that behalf seeks for the following 7 reliefs. They are:-

1. A Declaration that by the true Construction/interpretation of the Judgments/orders of the National/State Assembly Election Petition Tribunal in petition No: GMS/EPT/HR/2/2011 in its judgment dated 24th August, 2011, between Umar Ahmed Sule & Peoples Democratic Party Vs. Umar Abdullahi; Congress for Progressive Change (CPC): Resident Electoral Commissioner, Gombe State; and the Returning Officer Dukku/Nafada Federal constituency which was affirmed by the court of Appeal, Jos Judicial Division, in its Judgment in Appeal No: CA/J/EP/HR/172/2011 does not bar the plaintiff from participating by nomination of a candidate to contest the fresh election ordered into  Dukku/Nafada Federal constituency of Gombe State.
2. A Declaration that by the true construction and interpretation of the provision of Section 31 Subsections (6) & (8) of the Electoral Act, 2010  (as amended), the Fresh Election into the Dukku/Nafada Federal constituency (House of Representatives of Gombe State, Nigeria, as ordered by the National/State Assembly Election Petition Tribunal in Petition No: GMS/EPT/HR/2/2011 in its Judgment doted 24th August, 2011, between Umar Ahmed Sule & Peoples Democratic Party vs. Umar Abdullahi; Congress for Progressive Change (CPC): Resident Electoral Commissioner, Gombe State and the returning Officer, Dukku/Nafada Federal constituency which was affirmed by the court of Appeal, Jos Judicial Division, in its Judgment in Appeal No: CA/J/EP/HR/172/2011 delivered on the 21st October, 2011, contemplates the submission of a fresh list of candidates and their affidavits by the Plaintiff.
3. A Declaration that by the true construction and interpretation of section 140(2) of the Electoral Act (supra) where a Tribunal/Court nullifies the return of the person who scored the highest number of votes in an election on the ground that such a person was not qualified to contest the election at the time of the election and orders a fresh election, the nullification involves the entire process of such election starting from the date of appointment of the election, notice of the election, submission of Lists of candidates and their affidavits by Political Parities, Poll, Collation of Results of polls, Announcement of Result and Presentation of Certificate of Return to the winner of the election and all processes contemplated by Part IV of the Electoral Act (supra)?
4. A Declaration that the Letter of the Defendant to the National Chairman of the Plaintiff dated the 21st November, 2011 to the effect that the Plaintiff is barred from participation in the fresh election ordered by the National/State Assembly Election Petition Tribunal in Petition No: GMS/EPT/HR/2/2011 in Judgment dated 24th August, 2011, between Umar Ahmed Sule & People’s Democratic Party vs. Umar Abdullahi; Congress for Progressive Change (CPC); Resident Electoral Commissioner, Gombe State; and the Returning Officer, Dukku/Nafada Federal Constituency, which was affirmed by the Court of Appeal, Jos Judicial Division, in its Judgment in Appeal No: CA/J/EP/HR/172/2011 delivered on the 21st October, 2011 is wrongful, illegal, wanton, mala-fides and unconstitutional.
5. An Order of perpetual Injunction restraining the Defendant including its agents, servants or officials in whatever guise from preventing or stopping the Plaintiff to nominate or sponsors candidate under the cloak that the Judgments/Orders of the National/State Assembly Election Petition Tribunal in Petition No: GMS/EPT/HR/2/2011 in its Judgment dated 24th August, 2011 between Umar Ahmed Sule & Peoples Democratic party Vs. Umar Abdullahi; Congress for Progressive Change (CPC); Resident Electoral Commissioner, Gombe State; which was affirmed by the Court of Appeal, Jos Judicial Division, in its Judgment in Appeal No: CA/J/EP/HR/172/2011 delivered on the 21st October, 2011, barred or stopped the Plaintiff from sponsoring or nominating to contest in the fresh election ordered by both the Election Tribunal and the court of Appeal.
6. An Order setting aside the said Letter of the Defendant dated the 21st November
7. An Order directing the Defendant to accept the nomination of candidate by the Plaintiff to contest the fresh election into Dukku/Nafada Federal Constituency (House of Representatives) of Gombe State, Nigeria, scheduled for the 17th December, 2011, and or any other date as may be fixed by the defendant-

One needs not bemused in a situation of this nature. It is needed to see with a very clear vision. I see it as a Peculiar situation. Though the Tribunal decision of 17/3/2012 could well have given rise to the grounds of appeal from which these 2 issues now taken together were distilled, I find it easy to understand that the live issues in the matter in FHC/AHJ/CS/992/2011 are not totally too dissimilar with the 2 issues of hand in this appeal in any material respect. Though the grounds of appeal arose from the decision of the tribunal and any such decision could not override or be allowed or seen to have overreached the awaited decision of the Federal High Court on the matter because of the inferior status of the Tribunal vis-a-vis, the Federal High Court, with respect to this Court the situation is a bit more complex than it may appear to be.

The Federal High Court is inferior to this Court and by the doctrine of stare decisis and the hierarchy of Courts in this country any decision of this Court on a concerned and relevant issue is fully and absolutely binding on the Federal High Court. Because of the Position of the 2nd Appellant in this appeal and as Plaintiff in the matter before the Federal High Court there appears to be well laid out minefield in the circumstance. This Court must tread with a lot caution in order that it should not assume the position of a big bully by improperly adjudicating in a matter before a lower Court without the requisite jurisdiction or by deciding a matter between parties without a Proper hearing, contrary to due Process and Public policy.

Therefore, having seen the inextricable link between these 2 issues and the issues in the matter before the Federal High Court, I would for the time being refrain from resolving them one way or another. I keep them in abeyance till later.

All the arguments of learned Counsel to the Appellants on his issue No: 4 revolve around the complaint of the Appellants against the decision of the Tribunal to admit in evidence mainly Exhibits ID2, ID2, ID3 and ID4. I have fully considered all the responses of the respective Respondents on this crucial issue. I have also considered the decision of the Tribunal and all the steps it took in arriving of that decision.

For purposes of clarity, I wish to refer to what I consider a very relevant part of the judgment of the Tribunal that could assist this Court to resolve this issue. While dealing with this issue, the Tribunal decided that:-

“Our opinion is that documents marked ID2, ID3 and ID4 having not been certified as true copies of their originals, they are therefore inadmissible because of the prohibition to be found in SS 85, 86(1), 87(a), 89(e), 102 and 104 of the Evidence Act 2011. Documents marked ID3, ID3 and ID4 are declared inadmissible and are hereby rejected.”
(See lines 22-26 Page 273 of record of appeal)

In arriving at this decision, the Tribunal was guided by the fact that first and foremost with respect to Exhibit ID2 even learned Counsel conceded that it ought to be tendered only as a CTC and it is clear that indeed learned Counsel Mr. Magaji did so concede as can be seen in the course of the proceedings at Page 242 of the record of appeal, And while considering the character of the rejected documents, the Tribunal ref erred to the oral evidence of PW2 where he said that these documents were sent to INEC for further action.

Against this evidence, the Tribunal reasoned that if those documents were sent to any of the 2nd-4th Respondents herein, who they believe to be public officers, those documents would be expected to form part of public records or records of official acts of public officers. It is because of this observation on the effect of the evidence of PW2 that the Tribunal invoked S. 201 of the Evidence Act, 2011 and came to the conclusion that those documents ought to be certified as true copies of public documents under S. 104 of the Evidence Act, 2011 for them to be admissible.

I have considered all the foregoing and I must say that I do not see any substance in all the arguments and submissions of learned Counsel Mr. Magaji on this issue. With all due respect, there is hardly any merit in contesting the status and admissibility of the documents in question. Also, I cannot see how the reasoning and conclusion of the Tribunal can be faulted in its treatment of those documents. This issue must be and is hereby resolved against the Appellants.

In arguing issue 5 learned Counsel to the Appellants, Mr. Magaji explained that all the Respondents having rested their cases on that of the Petitioners must, in the circumstance, be deemed to have abandoned their pleadings and conceded to the reliefs in the Petition. Against this explanation, learned Counsel referred to section 123 of the Evidence Act 2011. He reproduced its text and cited the case of DINGYADI V. WAMMAKO (2008) 17 NWLR (Pt. 1116) 405 to explain its impact, relevance and application to the facts and circumstances of this appeal. Using this foundation as a background, Mr. Magaji, of Counsel submitted that the Tribunal was wrong in law when it failed to enter judgment in favour of the Appellants after the Respondents had abandoned their defence to the petition.

In what appears to me to be his response to this question, learned Counsel to the 1st Respondent, Mr. Umar, explained at paragraph 4.28, in the course of argument on the 2nd issue he formulated for the determination of this appeal, that it is trite law that a claimant can only succeed on the strength of his case and not on the weakness of the defence against it. He referred to the case of IYAGBA V. SEKIBO (2010) ALL FWLR (Pt. 518) 949 per Saulawa, JCA at 970  C-D. learned Counsel Mr. Umar explained further that at the close of the Petitioners’ case at the Tribunal no case had been made out to warrant for any defence to be advanced to challenge it. He further added the decision in JOLAYEMI V. ALAOYE (2004) All FWLR (Pt. 217) 585 to illustrate the principle of law and practice that a defendant need not prove anything if the plaintiff has not succeeded in establishing his case.

In another explanation, learned Counsel Mr. Umar submitted that it is the law that the burden of proof shifts in civil cases only after a party has discharged the initial burden placed on it. He then argued that burden of proof shifts only in appropriate cases. With respect to the facts in this appeal, Mr. Umar pointed out that because the case of the Appellants is principally anchored on unlawful exclusion to participate in a re-run election, they must prove a valid nomination to participate in the election and without any proof of this key fact it would be superfluous for any Respondent to open its defence to the claim. He urged the Court to resolve this issue against the Appellants.     In her response, learned Counsel to the 2nd-4th Respondents Mrs. Raje referred to the case of KARA WASAH (2010) 18 NWLR 117 at 141 to emphasise the legal principle that a claimant must rely on the strength of his case and not the weakness of the defence against it. And while referring to the case of I. M. T Ltd V. GULF BANK (Nig) Plc (2008) All FWLR (Pt. 402) 1092 at 1112, Mrs. Raje and maintained that a defendant need not proffer any answer to case where the Plaintiff has failed to lead any credible evidence in proof of his claim. She added further that the Appellants herein failed and did not lead any cogent evidence to sustain their claim. She urged the Court to resolve this issue against the Appellants.

In resolving this issue I wish to begin by recalling the real essence in the claim of the Appellants. This can be captured from the grounds for the petition. As noted above, the claim upon which they sought the reliefs outlined herein above are predicated on a valid nomination for an election and unlawful exclusion of a validly nominated candidate by the election umpire. It hardly had anything to do with, at least the 1st Respondent herein. Every blame must be seen in the allegations placed of the door steps of INEC.

The law is settled and well established that in order to prove that a Petitioner was validly nominated by his party but was unlawfully excluded from the election, he must prove, as a foremost requirement of the law, that he was validly nominated for the concerned election in all material respects by his political party. Other related requirements include: –

(a)     That the election was conducted and concluded;

(b)     That a winner was declared; and

(c)     That his name was not included in the list of contestants.

A Petitioner must not only plead all these 4 requirements but must also specifically prove them of the trial in which he was involved.

See EFFIONG V. IKPEME (1999) 6 NWLR (Pt. 606) 260 and EZEOBI V. NZEKA (1989) 1 NWLR (Pt. 98) 473.

In deciding this issue, the Tribunal referred and applied the cases of EFFIONA V. IKPEME (Supra) and ABUBAKAR V. YAR’ADUA (2008) 12 5C (Pt. 1) 1. Against the background of these decisions, the Tribunal decided that in the circumstance of the instant matter the Appellants failed to plead particulars or give cogent and admissible evidence of the valid nomination they lay claim to. Further, the Tribunal recalled and considered the provisions of S. 31(4) of the Electoral Act, 2010, as amended and held that it was incumbent on the Appellants, as the petitioners, to request for INEC (2nd Respondent) to make available to them documents by which the 1st Appellants name was proposed to be sponsored by the 2nd Appellant.

Against this background, the Tribunal went further to observe that:-

“… this tribunal is incapable of forming an opinion to the effect that there was valid nomination of the 1st petitioner.

The petitioners have consequently failed to prove valid nomination of the 1st petitioner by the 2nd petitioner. Without valid nomination, there cannot be unlawful exclusion. In this petition, unlawful exclusion has not been established by the petitioners as the 1st petitioner has not been shown to be a validly nominated candidate in the first instance.”

Having observed as it did that there was no credible and admissible evidence upon which it could make a strong finding that the 1st Appellant was validly nominated by the 2nd Appellant for the election, the Tribunal went further to agree with the position of the Respondents that their failure to adduce any evidence of all was not fatal to their defence of the claim of the Appellants.

In civil actions, including election petitions, it is the party that asserts the existence of a particular fact in its pleadings that is required to prove such fact by adducing credible evidence. If such a party fails to do so, his claim will fail. See BUHARI V. OBASANJO (2005) 3 NWLR (Pt. 941) SC 1 and DAODU V. NNPC (1998) 2 NWLR (Pt. 538) 355. Therefore, the burden of proof of particular facts is on the party that asserts or pleads it. This onus is not static.

It shifts from one side to other in a yoyo fashion. See AJADI v. AJIBOLA (2004) 16 NWLR (Pt. 898) 91.

It remains so until there is the proof of a fact on balance of probabilities.

It is a very well settled general principle of adjudication in civil matters that a plaintiff must rely on the strength of his case and not the weakness of the defence against it. The Tribunal fully considered and applied this principle in arriving at its decision. I have fully considered its approach whatever evidence that was before it and the steps it took in the review and evaluation of same. I have also considered all the decided cases referred to by learned Counsel to the appellants. All of those that are relevant go to re-inforce and support the approach and decision of the Tribunal in the circumstance of this matter. Upon a calm consideration of all the arguments and submissions of learned Counsel to the Appellants against the decision of the Tribunal it appears beyond per adventure that there had been serious lapses in the foundation of the case to make it so irresistible for the Tribunal to decide as it did that this whole action is devoid of any merit. It was inevitable for it to be declared still born and dead on arrival.

Issue 5 must also be resolved against the Appellants. Having so resolved issues 4 and 5 there does not appear to be any need to answer or resolve the questions in issues 2 and 3 for the purpose of this appeal. Appeal is dismissed for lacking in merit. The decision of the Tribunal dismissing the petition is affirmed. I make no order for costs.

MOHAMMED LADAN TSAMIYA, J.C.A.:

I agree.

UCHECHUKWU ONYEMENAM, J.C.A.:

I read before now the judgment of my learned brother A.A.B, GUMEL. just delivered. I agree with the reasoning and conclusion which I adopt as mine. I also dismiss the appeal for lacking in and I make no order as to cost.