3PLR – KUDU V. ALIYU

Published by Law Nigeria Admin at August 29, 2018

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]

KUDU

ALIYU

COURT OF APPEAL, KADUNA DIVISION

CA/ K/I/EP/92

TUESDAY, 24TH MARCH, 1992

3PLR/1992/59 (CA)

OTHER CITATIONS

(1992) 2 NWLR (Pt. 231) 615

BEFORE THEIR LORDSHIPS

MAMMAN NASIR, P.C.A

MOHAMMED MUSTAPHA ADEI3AYO AKANBI, J.C.A.

EMANUEL OBIOMA OGWUEGBU, J.C.A

NIKI TOBI, J.C.A.

MURITALA AREMU OKUNOLA, J.C.A.

BETWEEN

ALHAJI ALI SA’AD BIRNIN KUDU

AND

ALHAJI BUBA ALIYU
NATIONAL ELECTORAL COMMISSION
PROFESSOR J.O.O. ABIRI
THE RETURNING OFFICER

MAIN ISSUES

ELECTION PETITION:‑ Allegation of non compliance with Electoral Law ‑ Onus of proof on the petitioner ‑ How discharged.

ELECTION PETITION:‑ Election date ‑ Postponement of ‑ When power of exercisable ‑ Section 121(1) State Government (Basic Constitutional and Transitional Provisions) Decree No. 50 of 1991.

PRACTICE AND PROCEDURE – APPEAL:‑ Error of lower court ‑ Whether every error will necessarily lead to reversal of judgment ‑ Test for determining.

PRACTICE AND PROCEDURE – APPEAL:‑ Evaluation of evidence by trial court ‑ Attitude of appellate court thereto.

PRACTICE AND PROCEDURE – APPEAL:‑ Findings of facts or inference drawn on proved facts by trial court ‑ When appellate court will interfere therewith.

PRACTICE AND PROCEDURE – APPEAL:‑ Pleadings ‑ Decision based on facts not pleaded ‑ Effect of on appeal.

PRACTICE AND PROCEDURE – COURT:‑ Evaluation of evidence by trial court ‑ Attitude of appellate court thereto.

PRACTICE AND PROCEDURE – COURT:‑ Findings of fact or inference drawn on proved facts by trial court ‑ When appellate court will interfere therewith.

PRACTICE AND PROCEDURE – COURT:‑ Raising issue suo otu ‑ Duty on court where it does so.

PRACTICE AND PROCEDURE – ESTOPPEL:‑ Waiver ‑ Person having full knowledge of his right but intentionally deciding to give up all or some of them ‑ Whether can afterwards complain

PRACTICE AND PROCEDURE – EVIDENCE:‑ Election petition ‑ Allegation of non‑compliance with Electoral Law ‑ Onus of proof on the petitioner ‑ How onus discharged.

PRACTICE AND PROCEDURE – EVIDENCE:‑ Evaluation of evidence by trial court ‑ Attitude of appellate court thereto.

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER:‑ Error of lower court ‑ Whether every error will necessarily lead to reversal of judgment ‑ Test for determining.

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER:‑ Judgment of court ‑ Need to be confined to the issues.

PRACTICE AND PROCEDURE – PLEADINGS:‑ Decision based on facts not pleaded ‑ Effect of on appeal

MAIN JUDGEMENT

AKANBI, J.C.A.(Delivering the Leading Judgment):

On 14th December, 1991 elections were held throughout the States of the Federation to elect the Governors and members of the various Houses of Assembly. In Jigawa State, the appellant Alhaji Alo Sa’ad Bimin Kudu contested the governorship election on the platform of the Social Democratic Party. His opponent in that election was Alhaji Aliyu Buba of the National Republican Convention. When the results of the election were announced, Aihaji Au Sa’ad Birnin Kudu of the Social Democratic Party emerged the winner scoring 239,410 votes as against that of his opponent Aihaji Aliyu Buba who had a total of 120,011 votes. So, Aihaji Ali Sa’ad Birnin Kudu was duly declared the Governor of Jigawa State by the National Electoral Commission ‑ the body charged with the responsibility for conducting the elections.

Soon after the elections, Governorship and Legislative Houses Election Tribunals were established in all the States of the Federation pursuant to Section 88 of the State Government (Basic Constitutional and Transition Provisions) Decree 1991 (No.50 of 1991 )(hereinafter called Decree 50) to hear and determine any petition relating to the validity of an election.

Being dissatisfied with results of the election, the unsuccessful candidate, Alhaji Aliyu Buba filed an Election Petition before the Jigawa State Governorship and Legislative Houses Tribunal (henceforth called the Tribunal). In paragraph 3 of the petition, the Petitioner made allegation of diverse breaches of the rules governing the conduct of the election, by the National Electoral Commission, the first Respondent to the petition, its Resident Electoral Commissioner, (the 2nd Respondent) and the Returning Officer ‑ the third Respondent. The Petitioner itemized in sub‑paragraph (a)‑(h) the alleged transgressions committed by these three Respondents. They will be referred to if and when found necessary in the course of this judgment. As against Alhaji Ali Sa’ad Birnin Kudu who was joined as the fourth Respondent, the only allegation made against him that he was under 30 years of age and was therefore incapacitated and disqualified from being elected as a candidate in the said election, was abandoned at the trial. Nor was the further averment that he was not duly elected by a majority of the lawful votes pursued. Be that as it may, relying on the aforesaid paragraph 3 of his petition, the petitioner claimed as follows:

“A. That in respect of ground specified in paragraph 3 hereof;

That the election be declared invalid, by reason of matters referred to herein, particularly due to some act or omission by the first and second Respondents in breach of their official duty;

or in the alternative;

That the election was not so conducted as to be substantially in accordance with the law as to elections.

That a by‑election be ordered.
That in respect of ground specified in paragraph 4 hereof;
That the election of Alhaji Au Sa’ad Birnin Kudu be declared void.
That the petitioner ‑ Alhaji Buba Aliyu be returned elected.”

The 1st, 2nd and 3rd Respondents filed a joint reply in which they denied the material allegations contained in paragraphs 3(a) ‑ (h) of the petition, and went on to plead that the election was properly conducted and that the 4th respondent won by a majority of votes cast at the election. Indeed it was averred that by obtaining, 1/3 of the votes cast in 20 out of the 21 Local Government Areas of the State, the fourth Respondent had exceeded more than was statutorily required of him to justify his election. Similarly, the fourth Respondent in his Reply to the petition joined issues with Petitioner as regards the alleged breaches of the rules governing the conduct of the election and also contended that he duly satisfied the provisions of Decree No.50 of 1991 and that he won the election by a majority of lawful votes having obtained a total of 239,410 votes as against 120,011 scored by the Petitioner.

From the facts pleaded, it is discernible that the complaints of the Petitioner in the main were directed against the 1st and 2nd Respondents who according to him did not afford him and his political party, the National Republican Convention the opportunity (i) to campaign and organise his supporters for the election, (ii) to send agents to represent him at the polling stations, (iii) to deliver along with his nomination papers, the required number of posters bearing his photograph and the symbol of his political party and (iv) to display such posters at the polling stations to enable his supporters identify same and vote for him. It was part of the Petitioner’s complaint that having regard to the short notice he had from 1st and 2nd Respondents of his nomination as the candidate to contest the election on the platform of his party, in place of Alhaji Haruna Suleiman who had been disqualified by the 1st Respondent, a day before the date fixed for the election, he was effectively denied the opportunity of making adequate preparation for the elections, with the consequences that the result of the election was seriously affected.

Besides, it was said that the 1^st and 2^nd Respondents did not within the period prescribed, publish by displaying at the place or places appointed for the delivery of nomination papers, before the election day, a statement of the full names of the Petitioner and persons nominating him. Furthermore, the Petitioner alleged that such were the circumstances, that the voters and in particular his supporters became confused as to who was actually contesting the election on the platform of the National Republican Convention and that this confusion was further compounded by the fact that the disqualified Alhaji Haruna Suleiman was “with the passive connivance of the 1^st and 2^nd Respondents” up to the time of the election still campaigning by broadcasting that he was the nominated candidate of the National Republican Convention. These then were in substance the premises on which the Petitioner sought to avoid the election of the 4th Respondent.

It is perhaps pertinent to note even at this stage that no allegation of wrong doing was leveled against the 4^th Respondent. It is also well to observe in passing that no allegation of corrupt practice or offence against Decree 50 was made in the petition against him. Nor was it said that the 4^th Respondent suffered any disqualification. I have already pointed out that the allegation that he was below the age of 30 years at the time of the contest was abandoned at the hearing. So all told, there can be no doubt that the fate of the petition or more precisely the success or failure of it, must necessarily turn on what view is taken of the averment contained in paragraph 3(a) ‑ (h) of the petition to which I had earlier alluded as well as the evidence led in support.

Let me however point out that when the actual hearing began, parties were invited to settle issues and at the end of the day, the following issues were agreed upon and set down for trial.

“1. Whether the petitioner and the NRC were afforded a reasonable opportunity to have the petitioner replace the NRC candidate disqualified for the gubernatorial election in Jigawa State.

Whether there were irregularities committed by the National Electoral Commission regarding the processes commencing with the nomination of the Petitioner as a gubernatorial candidate on the platform of the NRC and ending with the election.
If the answer to one above is in the negative and/or the answer to (2) above is in the affirmative, whether such would warrant the nullification of the Election.
Whether there was a waiver of the rights of the Petitioner as a result of which the election ought not to be nullified.”

In proof of his case, the Petitioner gave evidence and five others testified on his behalf. The substance of their evidence was that the radio broadcast of the disqualification of 1‑laruna Suleiman and the nomination of the Petitioner was only made between 6.30 a.m. and 8.30 a.m. on the election day i.e. the 14th day of December 1991; that on the election day only the posters of the 4^th Respondent were collected by the third Petitioner’s witness Mohammed Ahmed who was the Presiding Officer at Kwazimo Polling Station in the Hadeija Local Government rea of Jigawa State, that there were no documents to identify the party agents at the poll. It was also said that at the Babura Local Government Area, there were no posters of the National Republican Convention candidate on display. The 4^th witness for the Petitioner, Ibrahim K. Usman himself a member of the National Republican Convention and a supporter of the Petitioner testified to that effect. He went on to say that only the “poster” of the candidate for the Social Democratic Party was on display. This witness however candidly stated that apart from the polling station at Babura ‘E’, he visited no other polling station. He also said that he knew that some people voted for the Petitioner, even though he did not. The last witness for the Petitioner, Bashiru Mustapha (PW5), Controller Current Affairs of the Radio Corporation of Kaduna testified that on the eve of the election there was a “political campaign jingle” made in Hausa several times on Federal Radio Corporation of Nigeria at the instance of Alhaji Haruna Suleiman calling on the electorates to vote for him at the Governorship election fixed for 14/12/91.

There was however no evidence that the 1st, 2nd and 4th Respondents had anything to do with the sponsored broadcast by Alhaji Haruna Suleiman or that any of them connived with him to do whatever he did in connection with the broadcast.

The Petitioner in his evidence, told the rest of the story. According to him, he received a message at 12.00 noon on 14/12/91 requesting him to see the Resident Electoral Commissioner for Jigawa State. He proceeded to Jigawa, and was there told by the 2^nd Respondent that Haruna Suleirnan who scored the highest vote during the primaries held by the National Republican Convention had been disqualified from contesting the election and that as the person who came second, he has been nominated in his place to contest the Governorship Election on the platform of the National Republican Convention Party. Accordingly, he was given nomination paper which was duly completed and returned together with his tax certificate, educational and other documents at 1.00 p.m. in the afternoon of 14/12/91.

The Petitioner went on to say that although he knew that a Gubernatorial candidate was bound to submit a photograph of himself and a symbol of his Party measuring at least 40cm and the list of his agents to the Resident Electoral Officer, he was unable to submit them because the time was too short for him to do so. Under cross‑examination by counsel for the 1st and 2nd respondents, the petitioner said:

“I did not want to stand for N.R.C. Party that day, but the Resident Electoral Commissioner prevailed upon me to do so. I was more or less forced to stand for the election. It was not at gun point.

I filled the Nomination Form EC4B. In the Form, I was nominated by 20 persons who themselves were registered voters. They too completed this form. These voters filed their names signatures and dates.”

The Petitioner also said that he complained to the Resident Electoral Commissioner that owing to the limited time available to him, he was unable to organise himself, his supporters, agents and get his posters and electoral requirements for the election. He gave no instruction to any person to act as his agent even though there might have been some who volunteered to act for him.

There was also evidence that the very moment the petitioner was given the nomination form (Exhibit 6) he paid NI ,000.00 for the form and N 15,000.00 as deposit. That about sums up the petitioner’s case.

The evidence of the 2nd Respondent dealt with the circumstances that led to the last minute decision to nominate the petitioner as the candidate of the National Republican Convention. It would appear that as early as 19/10/91, the National Republican Convention conducted primary election to choose who was to be the candidate for the governorship election. The result of that election for some reasons was canceled by the 1st Respondent. A second attempt was made on 5/12/91 but as no clear winner emerged, a run‑off election had to be held. The 1^st Respondent directed that all “run‑off’ elections should be concluded by 8th December 1991.

For some inexplicable reason however, the National Republican Convention fixed its “run‑off’ election for 12th December 1991 ‑ too close a date to the date fixed for the governorship election. It would appear however that after the exchanges of letters and some consultations with the two political parties, the Chairman of the 1st Respondent, directed that all run‑off elections should be concluded by 11/12/91 but the National Republican Convention (N.R.C.) still went ahead to conduct its primaries On 12/12/91. In the meantime, second respondent was under pressure from Lagos that the name of the candidate for N.R.C. should reach Lagos by 6.00 p.m. on 12/12/91. But that was not to be. The primaries were concluded at about 12.15 a.m. on 13th December 1991 and the results were received in Kano by the 2nd Respondent at about 7.30 a.m. on that day.

Unfortunately, by the time the primaries were concluded, a new situation had developed. A white paper Exhibit H had been introduced into the entire scenario. Although Alhaji Haruna Suleiman won, a white paper Exhibit 5 was produced to show that he had been indicted by the Kano State Government and so had to be disqualified from being the gubernatorial flag bearer of his party. In that critical situation, the 2nd Respondent had to decide one way or the other, that is, either to return the candidate of the Social Democratic Party (S.D.P) as having been elected unopposed or as said by the 2nd Respondent, give the voters opportunity to “elect which of the two parties should produce a governorship candidate”. In his evidence, the second respondent emphasised that ‑

“We decided that we should allow the N.R.C. to be represented at the Election of 14/12/91 even if this meant we should extend the time for receiving the nomination of the N.R.C. candidate. What was not negotiable was extending the date of the election. We were not prepared to change the date of the election. We were not prepared to change the date which had been fixed by the N.E.C. and the Government.”

It was part of 2^nd Respondent’s evidence that officially nomination for candidates should have closed at 6.00 p.m. on 12/12/91. Evidently therefore the invitation to the Petitioner to contest was, if I may say so, an act of grace. But the Petitioner a legal practitioner in his own right said he was forced to complete the nomination form Exhibit 6 when he was ill‑prepared to do so. Second Respondent however has denied that statement and further stated that ‑

“The petitioner told me that he was willing to contest the election of 14/12/91. The petitioner made no complaint to me about the timing.

The Petitioner did not tell me that he did not have time to campaign. In addition to the announcement, Exhibit 4,1 displayed the Petitioner’s name and those of his nominators in my office at Dutse.”

Contrary to the evidence of PW3, the first witness for the fourth Respondent Yahaya Abubakar, a supervisor in charge of Gamafoi area in Hadeija Local Government said that he distributed the posters of the two contestants to the Presiding Officer in the 10 polling stations he supervised at 7.00a.m. on 14/12/91. He tendered Exhibit 14 as a specimen of the posters he distributed. Exhibit 14 bears the photograph of the Petitioner. The witness went on

“1 found that Exhibit 14 was posted in all the polling stations of my area. I confirm that Kwazima polling station was one of the polling station which I supervised.

I deny that any of the working materials was not used. I did not receive any complaint in respect of the area I supervised.”

Under cross‑examination by Petitioner’s counsel, the witness said that:

“the posters which I got were given to me at the N.E.C. Hadeija.”

The 4th witness for the Respondent, a registered voter, also said that he voted at Babura Gabbas ‘B’ polling stations. There he saw posters of the Governorship candidates for both the N.R.C. and the S.D.P. which had been displayed outside. He also said that each party was represented by its agent. He went on to say that from Babura Gabbas ‘B’, he was able to see the posters used at the polling booths in ‘A’ and ‘C’

After the close of the case of the parties, which I have tried to summarise above, and the addresses of their learned counsel, the Tribunal reviewed the evidence and came to the conclusion that the petition succeeded and was accordingly allowed. The National Electoral Commission was ordered to conduct a fresh gubernatorial election as soon as possible.

Being dissatisfied with the decision of the Tribunal, the 4th Respondent Alhaji Au Sa’ad Birnin Kudu appealed to this Court under Section 93 of Decree 50 of 1991. The Respondents to the appeal are the National Electoral Commission (1^st Respondent), Professor J. 0. Abiri, the Resident Electoral Commissioner Jigawa State (2^nd Respondent), the Returning Officer (3rd Respondent) and Alhaji Buba Aliyu (the Petitioner/4th Respondent).

Mr. Ayodele, learned counsel for Alhaji Sa’ad (hereinafter referred to as the appellant), filed the Notice of Appeal, two notices of appeal, dated 10th February 1992 and 28th February 1992 respectively. He also filed appellant’s brief of argument also dated 28th February 1992. Another notice of appeal dated 8/3/92 and an accompanying brief of the same date as a notice withdrawing the notice of appeal dated 10th February 1992 were filed by Professor Kasunmu apparently on appellant’s behalf. With leave of the court, all the papers filed by Professor Kasunmu and the Notice of Appeal dated 10th February 1992 were withdrawn and accordingly struck out. The appellant’s appeal rested on the Notice of Appeal filed on 28th February and the brief of argument of the same date filed in support as well as the Reply brief of Appellant filed on 13th March 1992.

On behalf of the National Electoral Commission, the Resident Electoral Commissioner (Professor J. 0. Abiri) and the Returning Officer, their counsel filed a cross‑appeal. The respondents to the appeal are Alhaji Buba Aliyu and Alhaji Ali Sa’ad Bimin Kudu. Again two Notices of Appeal were filed on 11th February 1992 and 6th March 1992 respectively. The latter had an accompanying brief also filed on 6th March 1992. Leave was sought and granted at the hearing to withdraw the Notice of Appeal filed on 11th February 1992. It was accordingly struck out.

Learned Senior Advocate, Mr. Sofunde who appeared for Alhaji Buba Aliyu the 1st Respondent in both appeals also informed us that he has filed three briefs, the first filed on 9th March 1992 in response to the appellant’s brief dated 27/2/92; the second filed 12th March 1992 in response to the cross‑appellant’s brief dated 8th March; the third ‘filed on 17th March in response to appellant’s brief dated 8th March 1992. He also filed two different Notices of Intention to support the judgment on other grounds. These notices were respectively dated 3rd March 1992 and 16th March 1992. Also two Notices of Preliminary Objection were filed on 28th February 1992 and 12th March 1992. With leave of the Court, the 1st Respondent’s brief filed on 17th March 1992, the Notice to support judgment on C other grounds filed on 17/3/92 and Notice of Preliminary Objection dated 13th February 1992 were all withdrawn and struck out.

After all these preliminaries had been gone through, Mr. Ayodele proceeded to argue the appeal. He adopted and relied on the brief of argument filed on 28th February 1992 and the Reply brief filed in response to the 1st Respondent’s brief filed on 12th March 1992. In his oral submission before us, Mr. Ayodele highlighted four main errors in the judgment of the Tribunal. First, he said that the Tribunal based its decision on facts and issues which were neither pleaded nor raised by the parties to the proceedings. The first of these issues touched on the alleged defect in the nomination form Exhibit 6 submitted by the first respondent ‑ the Petitioner at the trial.

The second point which was raised suo motu was the finding that the 2nd and 3^rd Respondents in nominating 1st respondent to contest the election on the platform of the National Republican Party, dealt directly with the 1^St Respondent instead of approaching the party to nominate the candidate for the election and for that reason came to the conclusion that the party had in the language of the Tribunal been “sidelined”. It was Counsel’s submission that the defect in the nomination paper or its validity was no part of the issues joined. And it was not canvassed at the hearing. Indeed none of the Counsel was afforded the opportunity to address the Tribunal on it.

Besides, it was argued that having regard to the issues joined, the validity of the nomination not having been called to question, the Tribunal ought to have limited its consideration to matters arising after the nomination processes of the Petitioner had been completed. In effect, if I understand appellant’s counsel’s submission correctly, the Tribunal committed two serious errors namely that it traveled outside the pleadings of the parties to formulate an issue which was not within the contemplation of the parties and secondly based its decision thereon without hearing counsel on the issue so formulated.

As to the finding that the 1st and 2nd Respondents dealt with the 1st Respondent rather than his party, that also was never part of the case at the trial. The complaint of the 1st respondent on the pleading and the evidence was that he and his party were not afforded opportunity or allowed enough time by 1^St and 2^nd respondents to prepare or get organised for the election after Haruna Suleiman had been disqualified. It was not his complaint that 2nd and 3rd Respondents were wrong to have dealt directly with the 1st Respondent. And if I may say so the National Republican Convention has not made any complaint. Indeed it could not have made any since it was not joined in the proceedings or called upon to testify. Whatever is the case, the contention that the issue complained of, was raised suo motu has not been faulted. Mr. Sofunde S.A.N. for the 1st Respondent has in his argument before us conceded that the two issues were raised suo motu and were decided without the benefit of the addresses of learned counsel before the tribunal. It is the law that a Court is not allowed to formulate a case for the parties or decide on issues not raised by them, without at least giving them a hearing. See Fulani & Ors. v. Idi (1990)5 NWLR (Pt.150) 311; Maiyaki v. Maidoya (1988)3 NWLR (Pt.81) 226 at 234; TO. Kuti v. Mrs. S. Balogun (1978) 1 SC 53 at 60; inn v. Erhurhobara (1991) 2 NWLR (Pt.173) 252 3 S.C.N.J 1 at 12. In the case of Commissioner for Works, Benue State & Ors. v. Devcon Development Consultants Ltd & Ors. (1988) 3 NWLR (Pt.83) p. 407 at 420 The Supreme Court per KaribiWhyte JSC said:

“It is an elementary and fundamental principle for the determination of disputes between parties that the judgment must be confined to the issues raised by the parties. It is clearly not competent for the judge suo motu to make a case for either nor both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before him.”

See also Nigerian Housing Development Society Ltd v. Yaya Mumini (1977) 2 SC. 57; AdenIji & Ors v. Adeniji & Ors. (1972) 1 All NLR (Pt.1) 298 at 305.

However, Mr. Sofunde has argued that despite the concession made by him that the Tribunal should not have dealt with the two issues complained of suo motu and that it has no jurisdiction to pronounce on the validity or otherwise of the nomination papers, still the judgment ought not be upset. He said that those “irregularities” did not lead to a miscarriage of justice and that in any case there were such other irregularities found by the Tribunal as to justify the final conclusion it reached in this case. An example of such irregularities was:

(i) the failure to submit to the National Republican Convention the list containing the name of its rejected candidate;

(ii) the limited time given to the 1St Respondent to contest the election; the non identification of the Petitioner’s agent all of which he said were found in favour of the 1st Respondent.

Accordingly, it was submitted finally on the point that the serious allegations made by the 1st Respondent and proved, were by themselves enough to vitiate the trial. I think it is correct to say that the question whether there has been a failure of justice resulting from issues taken suo motu by the Tribunal is one of substance and not form: and whether or not, that will justify a reversal of the decision of the tribunal will depend on the entire facts and circumstances of the case.

Mr. Sofunde S.A.N. has further argued that the appellant’s counsel has not shown that the appellant suffered any injury as a result of the findings of the tribunal about the nomination form. I do not know what kind of injury counsel had in mind. To my mind, if the decision of a Court rested substantially on facts not pleaded or issues not raised by the parties or within their contemplation; or put differently, if the findings which formed the basis of the judgment on appeal, are not borned out by the pleadings of the parties, and the issues thrown up by the judgment of the court, do not arise from the pleadings and were indeed not canvassed, that judgment National Republican Convention has not made any complaint. Indeed it could not have made any since it was not joined in the proceedings or called upon to testify. Whatever is the case, the contention that the issue complained of, was raised suo motu has not been faulted. Mr. Sofunde S.A.N. for the 1st Respondent has in his argument before us conceded that the two issues were raised suo motu and were decided without the benefit of the addresses of learned counsel before the tribunal. It is the law that a Court is not allowed to formulate a case for the parties or decide on issues not raised by them, without at least giving them a hearing. See Fulani & Ors. v. Idi (1990)5 NWLR (Pt.150) 311; Maiyaki v. Maidoya (1988)3 NWLR (Pt.81) 226 at 234; TO. Kuti v. Mrs. S. Balogun (1978) 1 SC 53 at 60; inn v. Erhurhobara (1991) 2 NWLR (Pt.173) 252 3 S.C.N.J 1 at 12. In the case of Commissioner for Works, Benue State & Ors. v. Devcon Development Consultants Ltd & Ors. (1988) 3 NWLR (Pt.83) p. 407 at 420 The Supreme Court per KaribiWhyte JSC said:

See also Nigerian Housing Development Society Ltd v. Yaya Mumini (1977) 2 SC. 57; Adeniji & Ors v. Adeniji & Ors. (1972) 1 All NLR (Pt.!1 298 at 305.

However, Mr. Sofunde has argued that despite the concession made by him that the Tribunal should not have dealt with the two issues complained of suo motu and that it has no jurisdiction to pronounce on the validity or otherwise of the nomination papers, still the judgment ought not be upset. He said that those “irregularities” did not lead to a miscarriage of justice and that in any case there were such other irregularities found by the Tribunal as to justify the final conclusion it reached in this case. An example of such irregularities was:

(i) the failure to submit to the National Republican Convention the list containing the name of its rejected candidate;

the limited time given to the 1^St Respondent to contest the election; the non identification of the Petitioner’s agent all of which he said were found in favour of the 1st Respondent.

Accordingly, it was submitted finally on the point that the serious allegations made by the 1st Respondent and proved, were by themselves enough to vitiate the trial. I think it is correct to say that the question whether there has been a failure of justice resulting from issues taken suo motu by the Tribunal is one of substance and not form: and whether or not, that will justify a reversal of the decision of the tribunal will depend on the entire facts and circumstances of the case.

In the instant case the Tribunal in the several passages of the judgment alluded to this issue of defective nomination form and the fact that 1st & 2nd Respondents contacted the appellant directly instead of his political Party (Pages 109‑ 113 of the record of proceedings). Having regard to the context in which those issues were raised and the “devastating” comments they attracted, it can hardly be doubted that those issues seriously affected the mind of the Tribunal in coming to its conclusion.

As regards the other irregularities to which copious references were made in the judgment, I have in my summary of the evidence tried to show that the limited time given to the 1st Respondent to file his nomination form was due largely to the failure of his party to conduct its primaries on schedule and even when time was extended, the party failed to act timeously; and when the 1st Respondent was notified of his nomination he did not deem it fit to notify his party. True it is that he said he protested to the 2nd Respondent. If he did, it must be a feeble protest indeed. The fact that he paid the deposit of N 15,000.00 and NI ,000.00 for the nomination form and also got 20 voters to sign the form would appear to belie the contention that he was forced to contest the election.

I am not unmindful of the fact that the Tribunal preferred on the whole his evidence to that of the 2nd Respondent. The Tribunal also accepted his story that he did not collect posters from 2nd Respondent and held that there were no NRC posters displayed in all the 7,000 polling booths and none of his own agents were present at the polling booths.

Support was found by the Tribunal for his evidence in the evidence of PW3 whose evidence was preferred to that of DW3. The evidence of these witnesses have already in this judgment been highlighted. The 1st appellant and the cross‑appellant have both questioned the evaluation of the evidence made by the Tribunal. The criticism leveled in this regard were:

(i) contrary to the finding of the Tribunal that 1st Respondent did not at the hearing of the petition state that he was not asked to bring posters.

(ii) The Tribunal was wrong in inferring from the evidence of PW3 that because there were no posters at Kwazimo, there were no posters at all in all the 7000 polling stations in the state.

(iii) That the inference that having regard to the time limit, the Respondent could not have obtained posters on the night of 13th December 1991, cannot be justified having regard to the entire circumstance of the case.

(iv) That the Tribunal did not properly evaluate the evidence of DW3 otherwise it would have found that the witness collected the posters of the two parties at 7.00 a.m on 14/12/91.

(v) That the Tribunal failed to evaluate the evidence of DW4 as regards what happened at the three polling stations in Babura Gabbas.

Earlier on in this judgment, I have drawn attention to the evidence of the 4^th Respondents, PW3, DW3, & DW4. I need not go into the details of their evidence again. It is sufficient to point out that contrary to the finding that there were no polling agents of the parties at Kwazimo, there was some evidence from DW3 when he stated thus:

“The leaders of the political parties are supposed to send their agents to the polling stations. There were some party Agents present but there were no documents to identity them as such agents … but on the election day, these Agents were still there but they had no documents to identity them. At the end of polling, these Agents signed the Result Sheets.” (Italics mine)

True enough, PW3 said that he was not given any posters but then voting was on in Kwazimo polling station as in the several other polling stations in the State. DW3 said he gave posters to PW3, he produced a specimen, Exhibit 14. There was evidence from DW4 that he saw posters at three polling stations namely Babura Gabbas’ A’. ‘B’, ‘C’. The witness also said that there were agents at the polling station. Indeed the 1^St Respondent himself said that there were agents but added that they must be “volunteers”. That sounds rather strange for if they were not his agents, in the ordinary course of events, like the learned member of the Bar that he is, he could have protested.

But be that as it may I think it will be right to say that if the Tribunal had taken a hard look at the evidence of the 1st Respondent, and that of PW I and set same against the evidence of DW4, whose evidence was not evaluated at all, as well as the evidence of DW3, which was not believed, the inference that there were no posters in all 7,0000 Polling Stations would not have been drawn. The question that may be legitimately asked is if there were no posters at all, how were the 120,011 persons who voted for the 1^St Respondent or his party able to identify this candidate of their choice. Even granted that there were no posters at Kwazimo it would to my mind be too sweeping a generalisation, if not speculative to hold that, that fact alone would establish that there were no posters in all the polling stations. In any case the evidence of DW4 has belied that statement.

It is settled law that as a matter of general principle an appeal court will not ordinarily interfere with the findings of a trial court, but it will unhesitatingly do so:

(a) Where such findings are perverse or that the Judge did not utilise properly, the opportunity of seeing and hearing the witnesses KOD1LJNYE V. MBANEFO ODU (1935) 2 WACA 336 at 338, FABUMIYI & ANOR V. OBAJE & ANOR (1968) NMLR 242 at 247 CHIEF EBBA V. CHIEF OGODO & ANOR (1984)1 SCNLR 372 (1984)4 S.C. 84. WOLUCHEM & ORS V. CHIEF GUDI & ORS (1981)5 S.C. 291 at 326.

(b) Again it is the law that where the question is as to the proper inference to be drawn from the proved facts, the Court of Appeal is in as good a position as the trial court and will interfere to make the correct inference which the trial court failed to do. See FATOYINBO V. WILLIAMS (1956) SCNLR 274 (1956) 1 FSC 87; CHKUWUOCHA V. ONUOHA (1991) 4 NWLR (Pt. 184) 234 at 241; EGONU V. EGONU (1978) 11 ‑ 12 S.C. ill at 133; EKPENYONG & ORS V. EFFIONGNYONG & ORS(1975)2 S.C. 71 at 80; OBIORA V. OSELE (1991) 8 NWLR (Pt.165) at 182.

From the analysis, I have so far made, I have no doubt that the Tribunal in this case not only failed to take proper advantage of seeing and hearing the witnesses, it also drew wrong conclusions froth the proved facts especially by failing to evaluate the evidence of DW4. I am unable, in the circumstances, to say that there has not been any miscarriage of justice. In my view it is the duty of this court to correct these errors and come to the correct conclusion in the matter.

See FRANK EBBA V. CHIEF OGODO (1984) 1 SCNLR 372(1984)4 S.C. 84 at 103/ 104; AKIBU V. OPALEYE (1974)11 S.C. 189 at 202 cited by Mr. Ayodele Counsel for the Appellant.

I am however not unmindful of the fact that the learned Senior Advocate Mr. Sofunde has sought to rectify the errors committed by the Tribunal by filing a Notice of intention to support the judgment on other grounds. He said that having regard to irregularities highlighted, it was possible for the Tribunal to infer that those irregularities might have affected the result of the election. Counsel’s contention was that the irregularities need not affect the result. It is sufficient if the evidence was such that it might have affected it. Reliance for this submission was placed on the case of AKINFOSILE V. IJOSE (1960) SCNLR 447 (1960) 5 FSC 192; IHIERE V. SALAMI (1989)2 NEPLR 131, SORUNKE V. ODOBUNMI (1960) SCNLR 414; (1960) 5 F.S.C. 175; OJUKWU V. ONWUD1NWE (1984) Vol. 1. SCNLR 247 at 306.

Appellant’s counsel has contended that there has to be evidence that these irregularities or non‑compliance with the provisions of Decree No. 50 of 1991 actually affected the result of the election. In this respect, he referred to the statement of OBASEKI J.S.C. in the Case of AWOLOWO V. SHAGARI (1979)6‑ 9 S.C. 51 at 113 which part reads:

“ … It is my opinion that the second and third propositions do represent the State of the law in Nigeria and to vitiate an election, the non‑compliance must be proved to have affected the result of the election.”

Section 92(1) of Decree No.50 reads:‑

“An election shall not be invalidated by reason of non‑compliance with this Decree if it appears to the court or tribunal that the election was conducted substantially in accordance with the principle of this Decree and that non‑compliance did not affect substantially the result of the election.”

And in AKINFOSIIE V IJOSE (1960) SCNLR 447, (1960)5 FSC 192 at 199 the following appears:-

“… a Petitioner who alleges in his petition a particular non‑compliance and avers in his petition that the non‑compliance was substantial, must satisfy the court”.

See also DZUNGWE V. EDWARD KUNDA SWEM & ANOR (1965) NNLR 33 at 34. Firstly, I have tried to show in this judgment that none of the facts set out of the Notice of Intention to support the judgment has been established by credible evidence. The 1st Respondent did not call sufficient evidence to show, if any, what happened in most of the polling stations. The Tribunal did not address its mind to whether or not the issues raised in the Notice did or did not affect the result. In any case I have shown that the conclusions drawn from the facts found by the Tribunal and the inferences drawn therefrom, are incorrect and incredible. The facts proved are not such that can lead to the inference that those who failed to vote, did not do so because of any non‑compliance with the provisions of the Decree. So indeed, it will be speculative in the absence of any concrete evidence to say, as we have been asked to, that those people were affected by the fact that the 1st Respondent’s posters were not displayed or that the sponsored radio broadcast by Haruna Suleiman was responsible.

It has also been said that there has been breach of Schedule 5, paragraph (1) (i) and paragraph 2(4) of Decree 50. It is clear to me that having regard to the fact that Decree 50 came into force on 6th December 1991 and the election date had been fixed for 14‑12‑91 absolute compliance with the Decree No. 50 would be impossible. As I said before, unfortunately, the National Republican Convention did not help matters. By unduly delaying the holding of its primaries and flouting the directives of the 1^St Respondent, it worsened the situation. So if there was any injury at all, it was a self inflicted injury. Happily the Party is not complaining.

However teamed Counsel for the Cross‑Appellant Mrs. Abdullahi has argued that the 1st Respondent has no right to complain about any irregularities or breaches in the conduct of the election. By his own admission, he was aware of the difficult situation under which the election had to be conducted, he accepted to take the risk and was prepared to take the benefit, so, he cannot in the circumstance be heard to complain of any non‑compliance with the rules. It was part of her argument that the right being claimed by the 1st Respondent was the right to contest election and he had the choice to enforce that right or reject it. It is his personal right which no one can take from him. If therefore having full knowledge of the rights, interests, profits or benefits conferred or accruing to him by and under the law, but he intentionally decides to give up all these or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights, or that he has suffered by his not having exercised his rights. He should be held to have waived those rights. See ARIORI & ORS V. ELEMO & ORS (1983) 1 SCNLR I (1983)1 S.C. 13 at 49.

The case of OGBONNA V. AG. OF IMO STATE & ORS (1992) 1 NWLR (Pt.220) 647 at 690/691 is also authority for the proposition that as a matter of general principle a person will generally not be allowed to complain of an irregularity he has himself accepted and condoned. See also ODU’A INVESTMENT CO. LTD. V. TALABI (1991) 1 NWLR (Pt.170) 761 cited by the learned counsel.

1 agree with the submission of the learned Solicitor‑General of Jigawa State that the 1st Respondent has by his conduct and actions waived the right to complain about any irregularities in the conduct of the election. He cannot eat his cake and have it.

It now remains for me to consider the submission of Mr. Sofunde that 1^st Respondent ought to have postponed the election. It was his contention that the fact that the election date has been fixed, ought not stop 1st Respondent/CrossAppellant from postponing it if circumstances called for it.

What it means is that the election has to be postponed throughout the Country. In the alternative, Section 87 which requires voting to be carried out on one and the same day throughout the Federation would have to be construed with section 10 of the Interpretation Act; and if so read, it should be possible to postpone the election in a Constituency.

The power to postpone an election is set out in section 121(1) of Decree 50. It reads:

“Where a date has been appointed for the holding of an election and there is reason to apprehend that a serious breach of the peace is likely to occur if the election is proceeded with on the date, the holding of the election may be postponed by the National Electoral Commission until some other convenient date to be appointed by it”.

It is clear to me that once a date for an election is fixed, it may only be postponed if there is fear of a serious breach of the peace. Section 10 of the Interpretation Act does not alter the situation. I am therefore unable to agree with Mr. Sofunde that 2nd Respondent/Cross‑Appellant would have postponed the election. Finally, I need only add that Mr. Sofunde did not argue the Notice of Preliminary Objection filed on 12th March 1992 and it is deemed abandoned and hereby struck out.

I am therefore of the view that for all the reasons I have given above both the appeal and the cross‑appeal succeed. The Judgment of the Jigawa State Tribunal delivered on 10th February 1992 is hereby set aside together with all the orders made by the Tribunal. The Governor, Alhaji Ali Sa’ad Birnin Kudu elected at the election held on 14th December 1991 is affirmed as the Governor of Jigawa State.

I award costs of N500.0O against the 1st Respondent in favour of each set of Appellants.

NASIR, P.C.A:

I have had the privilege of going through the lead judgment in this appeal. I am in complete agreement with the reasoning and conclusions of my brother Akanbi, J.C.A. I also adopt all the orders including the order as to costs made in the said lead judgment.

OGWUEGBU, J.C.A.:

I am in complete agreement with my brother, Akanbi, JCA in respect of the two appeals. For the reasons stated in the lead judgment which I adopt as mine. I too will allow both appeals.

Both appeals are accordingly allowed and I abide by all the consequential orders including those as to costs contained in the said judgment.

TOBI, J.C.A.:

I am tempted to ask a few questions. Let me succumb to the temptation since I do not see anything wrong in doing so. Why did the Petitioner, Aihaji Buba Aliyu, accept the request of Professor, J.O.O Abiri, the Resident Electoral Commissioner for Jigawa State to contest the election very late in the day? Why did he collect the Nomination Form (Exhibit) 6)? Why did he complete the Form after taking the trouble to collect the signatures of twenty nominators? Why did he hand over to Professor Abiri, together with the Nomination Form, his tax certificate, educational and other documents? Why did he pay the sum of N1000.00 for Exhibit 6? Why did he pay the sum of N15,000.00 as deposit? Only to turn round to say that he was an unwilling horse. Alhaji Aliyu, a Legal Practitioner by profession, told the Tribunal that he “was more or less forced to stand for the election. It was not at gun point.” At what point then? What legal or physical capacity had Professor Abiri to force a Legal Practitioner to contest an election against his will? Where is the evidence of the ‘force’ beyond or outside the lips of Aihaji Aliyu? This and other aspects of this matter look to me almost like the story of “Alice in Wonderland”. But this court will not wonder.

I have two more questions and I will be done. The penultimate and very telling one is this: Could Alhaji Aliyu have complained that he was choked up with time if the result of the election figures was in the reverse, that is to say, if he was the one who scored 239,410 votes and Aihaji Sa’ad Bimin Kudu scored 120,011 votes. And the last one: Why then the furore?

It is good law that a person who sees an appliance that is capable of causing injury and walks into it, cannot complain of any injury he sustains in the process. That is the case here. The well cherished principles of equity will not allow him to complain. In my humble view, the Petitioner took a gamble and he cannot be heard to complain on the result of the gamble. He should accept it cum onere.

My learned brother, Akanbi, J.C.A. has admirably dealt with the issues in this appeal, I entirely agree with his reasons and conclusions. I have nothing useful to add. I adopt his judgment as mine, including the order as to costs.

OKUNOLA, J.C.A.:

I have had the privilege of reading in draft the lead judgment of my learned brother, Akanbi, 4CA. I am in full agreement that all the salient issues canvassed in the appeal had been adequately and ably covered and considered. I agree with his reasonings and conclusions as set out therein.

The point has been made by the learned counsel to the 1^st Respondent Mr. Sofunde S.A.N that the party of the 1st Respondent the National Republican Convention (NRC) (hereafter referred to as the Party) had been sidelined by not being contacted to present the 1st Respondent for the 14th December 1991 Governorship Election. It can be observed from the records that the Party has not complained of any breach in this direction. The Party was not joined at any stage of the proceedings. The 1st Respondent who is complaining in my view, appears like the gentleman spoken of in Jonathan Swift’s Guliver’s Travels who having taken the hoe, starts looking back.

I agree with the lead judgment that having taken all the necessary steps he had taken in the electoral processes, which steps had earned him the 120,011 votes he scored in the election, the 1st Respondent cannot be heard to be complaining, that he was “forced” to stand for the election. It is clear that if the 1st Respondent had won the election he would not have complained about any “irregularities”.

It is for this and the fuller reasons given by my learned brother Akanbi, JCA in the lead judgment that I too allow both sets of appeals and set aside the decision of the Election Tribunal for Jigawa State. I also subscribe to all the consequential orders including the orders as to costs contained in the lead judgment.

Appeal Allowed.

Cross‑Appeal Allowed.

3PLR – KUDU V. ALIYU

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR

Law Nigeria Admin

Related posts

MAFULUL AND OTHERS V. BITRUS TAKWEN & OTHERS