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COURT OF APPEAL
BEFORE THEIR LORDSHIPS:
IGNATIUS CHUKWUDI PATS-ACHOLONU, JCA
IFEYINWA CECILIA NZEAKO, JCA
CHRISTOPHER MITCHELL CHUKWUMA-ENEH, JCA
AMIRU SANUSI, JCA
J.K. Gadzama SAN. for the Appellant
J.B. Dauda SAN. – for the 1st Respondent C. Ubale Esq; H. Abdu Esq., M.T. Mohammed Esq. and A.
Mohammed Esq., E.L. Latebo Esq. – for the 2nd-4th Respondents.
PRACTICE AND PROCEDURE – JURISDICTION – the Election Tribunal on the qualification of a candidate
Pats-Acholonu JCA (Reading the Leading Judgment)
The appellant and the 1st respondent contested the gubernatorial election of Gombe State on 9/1/99. They contested the election under the banners of their parties PDP and APP respectively. The 1st respondent was declared the winner of the election whereupon the appellant challenged the returning of the 1st respondent in an election petition. There are two main planks to his case:
(1) That the 1st respondent who was declared successful in the election was not duly qualified.
(2) That he did not win by a majority of the lawful votes cast. After carefully examining the matter the Election Tribunal decided that it was not competent to inquire into the qualification of the 1st respondent in that it is the preserve of INEC. And it equally held that the 1st respondent in that it is the preserve of INEC. And it equally held that the 1st respondent was elected by a majority of the lawful votes cast. The appellant thereupon lodged an appeal of 5 grounds and most inelegantly formulated 6 issues from the grounds of appeal.
I must observe in passing that in drafting briefs there are three determinants for a good brief and they are:
It is therefore highly irregular to make the number of issues more than the grounds of appeal from which they are distilled. The corner stone of this case rests apriori on:
(a) the competence of the tribunal to inquire into the qualification or otherwise of contestant after he has been screened and cleared by INEC.
(b) Whether the document admitted as Exhibit M2 and titled “Views of the federal Government on the Report of the Judicial Commission of Inquiry into Kafin Zaki Dam and Kawali Diversion structure”, is an authentic document expressing the view and acceptance of the report of inquiry into this matter.
Issue No 1 Is the court below precluded from looking into the qualification of the 1st respondent? Arguments have been advanced by both sides, for and against. In my view, I think this court is bound by the judgment of this court in the recent case of Abdullahi v. Elayo (1993) 1 NWLR (Pt.268) 171 at 178, ratio 4 where it said: “By virtue of the provisions of section 41(1)(a) of the National Assembly (Basic Constitutional and transitional Provisions) Decree No.18 of 1992 both the Election tribunal and the Court of Appeal are allowed nevertheless to examine the question whether or not a person was qualified to have contested the National Assembly election.
Although the rule enunciated in Doukpolagha v. George (1992) 4 NWLR (Pt.236) 444 is that it is the exclusive duty of the National Electoral Commission and the Transition to Civil Rule Tribunal to determine whether or not a person is qualified to contest an election, it must not be understood to mean that the election tribunal and the Court of Appeal have no role whatsoever in the matter. For otherwise, it will negate section 4(1)(a) of Decree No.18 of 1992 (P.196, paras. B-D) Per Oguntade, J.C.A. at page 196 paras D-F: “The power to determine whether or not a person is qualified to contest is vested in National Electoral Commission with a right of appeal to the Transition to Civil Rule Tribunal. But the Election Tribunal and the Court of Appeal have a supervisory jurisdiction to ensure that the provision of the law which bans certain persons from participating in politics is complied with.
The position is that, when parties have by their pleadings identified it as a distinct issue that what is to be decided is whether or not a person is banned or disqualified from participation in politics, the duty of the election tribunal is to call on the person whose election is being questioned on the stated ground to show the proof that he has been cleared by the National Electoral Commission and or the Transition to Civil Rule Tribunal. It is, I think wrong to treat the matter as one concerning the jurisdiction of the election tribunal or the Court of Appeal to consider the matter in any form. Clearly, the relevant provision of Decree No. 18 of 1992 which is section 41(1)(a) confers that jurisdiction”. Per Oguntade, J.C.A. at page 197, para C: “The result of what I have said so far that the election tribunal and this court cannot abdicate the jurisdiction so clearly conferred upon them by lamely declining to ensure compliance with the provision of Law No. 25 of 1987 on the ground that only the National Electoral Commission and the transition to Civil Rule Tribunal can determine the issue.’ In his contribution, His Lordship, Edozie J.C.A. at page 201 said that: “..Once N.E.C. or the transition to Civil Rule Tribunal has made a decision that a candidate for an election has been cleared, an election tribunal or this court cannot go behind that decision to decide otherwise. Notwithstanding that, it is my view that the election tribunal or this court is competent to enquire whether a candidate who claims or makes a positive assertion that he has been cleared by N.E.C. or the Transition to Civil Rule Tribunal was in fact so cleared.”
Without going further it is my view that this court is competent to inquire into the qualification or disqualification of a candidate. This is without prejudice to Decree 6(3) of Schedule 5 to Decree 3 of 1999 which appears to preclude the invasion of the preserved power of the Electoral Commissioner or Electoral Officer. I hold boldly that this court has competence to inquire into the qualification or the disqualification of a candidate. The next issue is as to the status of Exhs. JJ and KK. There is no doubt that when these documents were made, pleadings have been filed and served, therefore they were made at the time of t proceedings of the case. Exh. M2 is a document which on its face value appears to be the government’s expression of its acceptance of the recommendation of the Judicial Commission of Inquiry which indicted the 1st respondent. Exhs, JJ and KK which on their face seek to explain the Federal Government’s position on ’M2’ were obvious wrongly admitted as they were made in the course of the proceedings. Therefore they are of no evidential value in assessing the worth of these documents. The question that readily comes to mind is under whose authority was Exh. M2 issued. There was an accompanying letter from Tanko Ashana of the Federal Ministry of Justice indicating that this document was equally said to have been certified by him. The signature in the stamps of the Federal Ministry of Justice in Exh. M2 differs significantly from the signature in Exh.M1. The inference is that the person who signed the forwarding letter Exh.M1 is different from the person who allegedly certified Exh.M2.
This scenario, has raised some seemingly intractable problems. The court below reject the authenticity of Exh.M2 relying unfortunately on Exh. JJ and KK. In civil cases the burden of proof may shift from one to the other. Looking at these documents, the people who tendered Exh.M-1 and M-2 relied on the contents of Exh.M1 andM2. In the normal course of governance, the government be it Federal. State or Local manifest its acceptance of a report or inquiry by was of publication of a white paper which tells the world the reaction of the government to the inquiry. A citizen of Nigeria can purchase such a document from the Ministry of Justice, Abuja or the government press. This is not so in this case. The enquiry took place in 1994, and the government had not manifested its acceptance. The incongruity patently manifested on the front page of Exh.M2 is a matter that ought generally to be explained by the appellant regardless of any other evidence affecting this matter. It is a settled law that where a party seeks to persuade the court to accept certain state of affairs it must o the preponderance of evidence prove it. And where the situation presented is equipoise that the court would pick and choose, then the matter has not been proved. It is the binding duty of the appellant to show that Exh. M2 is an authentic document, expressing the view of the government by which it accepted the report of the enquiry. In my view Exh. M2 does not appear to answer the description of a document in which the government expressly accepted the report. Besides I would have thought that such a document should come directly from the office of the Attorney-General of the Federation signed by him, or a Senior Legal Officer.
This being the case, I hold that Exh. M2 cannot be said to be authentic document or a document from the right source. On the issue of irregularity which resulted in the overall victory of the 1st respondent, the court below was not convinced. In its judgment it said: “The margin is 94,978 votes the petitioner was not in agreement with this declaration of the results because of the complaint of irregularities, malpractice’s and corrupt practices which he now alleges”. The court made a finding of fact on the strength of the evidence before it that there is no evidence to show that the number of votes exceeded those accredited other than the 75 polling units in the said Local Government Areas. The appraisal of evidence by the tribunal below cannot be impugned by this court unless it is perverse. It found also that the issue of violence alleged by certain people could not be linked to the 1st respondent. This court will not go behind the proper appraisal made by the tribunal which heard the evidence of the witnesses and made its findings when the matter did not preponderate in favour of the petitioner/appellant in the court below. In the circumstances this appeal fails and it is hereby dismissed. The judgment of the trial tribunal is affirmed and the 1st respondent stands elected. Cost of N5, 000.00 is awarded to the 1st respondent.
DISSENTING VIEWS OF SANUSI, J.C.A.: 1. Words should be given their ordinary meaning only. It is not for the court to interpret the law on the basis of what it ought to be but on the basis of what it is. Thus, Paragraphs 6(3) of Schedule 5 to Decree No.3 of 1999 which provides that notwithstanding any other provision of the decree or any other law the decision of a Resident Electoral Commissioner o Electoral Officer that a candidate has been nominated shall not be a ground of election petition, limits the operational effect of Sectional 134(1) of the decree, and should be construed as meaning that such ground cannot be entertained by the Election Tribunal or the Court of Appeal. 2. “I however, have some misgivings on the view in the lead judgment that the tribunal and this court could inquire into the issues of qualification and disqualification. I hold the view that paragraph 6(3) of Schedule 5k to Decree No. 3 of 1999 by its plain wordings has limited the operational effect of section 134(1) (a) of the decree. The paragraph reads thus: “Notwithstanding any provisions of the decree or any other law; the decision of the Resident Electoral Commissioner or Electoral Officer that a candidate has been validly nominated under subparagraph (2) of this paragraph shall not be the ground of an election petition under this decree;’ (Italics supplied by me)