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All Progressives Congress (APC) v. Independent National Electoral Commission (INEC) (EPT/KN/GOV/01/2023, 20th Day of September, 2023)

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➥ CASE SUMMARY OF:
All Progressives Congress (APC) v. Independent National Electoral Commission (INEC) (EPT/KN/GOV/01/2023, 20th Day of September, 2023)

by Branham Chima.

➥ SUBJECT MATTER
Election petition;
Qualification to contest;
Membership of political party to contest election;
Over-voting.

➥ CASE FACT/HISTORY
The election into the Governorship in Kano State held on the 18 th of March 2023. The Petitioners candidate NASIR YUSUF GAWUNA contested the election on the platform of the Petitioner (APC). The 2 nd Respondent YUSUF ABBA KABIR on the other hand, contested the said election on the platform of the 3 rd Respondent (NNPP).

At the end of the election, the 1 st Respondent (INEC), who was in charge of the conduct of the said election declared the 2nd Respondent, candidate of the 3 rd Respondent, winner of the election with 1,019,602 votes and accordingly returned him as duly elected. The Petitioner who are credited to have scored 890,705 votes, are not satisfied with the said election and declaration of the 1 st Respondent.

➥ ISSUE(S) & RESOLUTION(S)
[PRELIMINARY OBJECTION: DISMISSED, IN PART]

I. Whether by the inclusion of the phrase ‘and return of the 2nd Respondent as Governor of Kano State’ into the provisions of S134(1)(b) of the Electoral Act 2022, renders ground 1 of the Petition of the Petitioner as invalid and liable to be struck out?

RESOLUTION: IN PETITIONER’s FAVOUR.
A. THE USE OF THE PHRASE DOES NOT DETRACT FROM THE SECTION; SAME MEANING WAS CONVEYED
[‘There is no contention as to the fact, that there was a Governorship election held in Kano State on the 18 th of March 2023. That the 2 nd Respondent was returned as the winner of the election on the 20 th day of March 2023. In effect, there is no gainsaying the fact, that there was an ‘election’ and there was a ‘return’ in the Governorship election in Kano State. It is our considered view, premised on the strength and consideration of the authorities cited above, that though a Petitioner is enjoined to use the exact words in S134 (1) (b) of the Electoral Act 2022, that the addition of the word ‘and return of the 2 nd Respondent as Governor of Kano State….’, into the provisions of S134(1) (b) of the Electoral Act 2022, in the ground as stated by the Petitioner in the petition, is not ambiguous and does not materially or substantially alter the provisions of that ground as formulated by the Petitioner, as it is inclusive of the obvious and known fact, that there was an ‘election’ and there was a ‘return’ in the Governorship election held in Kano State on the 18 th of March, 2023 and a return of the 2 nd Respondent on the 20 th March, 2023. Election is a composite process which ends with a return of an elected candidate. We are unable to see how a ground of the petition which complains of return of a candidate specified for a State can be outside or contravene section 134(1) b of the Electoral Act 2022. See also S130 of the Electoral Act, 2022. The current judicial mood, is that substantial justice should be done to the parties in election cases without being unduly fettered by legal technicalities through strict adherence to the provision of Section 134(b) of the Electoral Act, 2022. This is the liberal approach founded on a consideration of the attainment of substantial justice. We are inclined to do substantial justice to this issue for determination, which relates, or pertains to the couching of ground one of the Petitioner’s petition in accord with our understanding of the current mood of the Courts in election matters; a mood dictated by the need to eschew technicalities in favour of substantial justice. See the cases of: CHIME VS EGWUONWU (2008) 2 LRECN 575 AT 616; CHIME VS EZEA (2008) LRECN 673 AT 744 TO 745, (2009) 2 NWLR (PT. 1125) 263; ABUBAKAR VS YAR’ADUA (2008) 4 NWLR (PT. 1078) 465;INEC VS INIAMA (2008) 8 NWLR (PT. 1088) 182 and OGUNSAKIN VS AJIDARE (2008) 6 NWLR (PT. 1082) 1’]
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II. Whether this tribunal has jurisdiction to determine Ground 2 (‘That it be determined that the 2nd Respondent was not qualified as a candidate in the election to the office of Governor of Kano State held on the 18 th of March 2023’) of the petition in the light of the objection raised by the 1 st Respondent and the reply of the Petitioner thereto?

RESOLUTION: IN RESPONDENT’S FAVOUR.
A. SPONSORSHIP OF A CANDIDATE IS AN INTERNAL AFFAIR OF A POLITICAL PARTY
[‘It has been consistently held in a plethora of authorities, that it is only the party (in this case, the 3 rd Respondent), that has the prerogative of determining who are its members and the 3 rd Respondent, having sponsored the 2 nd Respondent as its candidate for the Governorship Election in Kano State on the 18 th of March 2023, the 2 nd Respondent has satisfied the requirement of being a member of the 3 rd Respondent as provided for in S134 (1) (a) of the Electoral Act 2022. Consequently, it is not within the right of the Petitioner at this stage and after the nomination, sponsorship of the 2 nd Respondent by the 3 rd Respondent as its candidate, to question the 2 nd Respondents membership of the 3 rd Respondent as it is an internal affair of the party. This issue has been laid to rest in the following cases; See the cases of ENANG V ASUQUO & ORS 2023 LPELR 60042 SC AT PAGES 29-35, PARAS D-A; SANIV GALADIMA & ORS 2023 LPELR60183 SC AT PAGES 32-33, PARAS D-A, TUMBIDO V INEC& ORS 2023 LPELR 60004 SC AT PAGES 31-35, PARAS D-D; AGI V PDP 2016 LPELR 42578 SC AT 48-50; UFOMBA V INEC 2017 LPELR -42079 SC; APC V MOSES 2021 14 NWLR PART 1796 PG 278 PARAS C-F Ditto, the same decision and/or position was maintained in the cases of APM V INEC 2023 NWLR PART 1890 and the recent unreported case of MR PETER GREGORY OBI & 1 OR V INEC & 3 ORS PETITION NO CA/PEPC/03/2023, delivered on the 6 th of September 2023. For the aforesaid reasons, this issue is resolved against the Petitioner in favour of the Respondents.’]
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III. Whether the Petitioner’s reliefs 4 and 6, which are sought on behalf of a person who is not a party to the petition are grantable (having not joined the candidate it sponsored in the election)?

RESOLUTION: IN PETITIONER’s FAVOUR.
A. A POLITICAL PARTY CAN CHALLENGE AN ELECTION WITHOUT JOINING ITS CANDIDATE
[‘This position was also clearly expounded in the case of CPC V INEC & ORS 2011 LPELR-8257 SC, to the effect, that the said provision did not put a restriction on the kind of relief an election petition filed by a political party, as sole petitioner, can ask for and could not have intended that the petition presented by the political party should not ask for reliefs that benefit the candidate it sponsored for the election. Ditto, the Dictum of the Supreme Court in the case of ODEBO V INEC & ORS 2008 LPELR -2204 SC PG 109 PARA A expounds that ‘Candidates in an election are sponsored by political parties. It is the political party that participated in the conduct of an election that is the winner or the loser and not the candidates by the political parties. Sometimes, the goodwill of a candidate being sponsored in an election may contribute to the victory of the political party in an election. Section 122 of the 1999 Constitution of Nigeria does not recognize an independent candidate contesting in our elections’ See also S136 (2) of the Electoral Act 2022 In effect, and what this tribunal is saying, is that for the grounded constitutional and entrenched principle, that the candidate is sponsored by his political Party, the argument of counsel to the 1 st Respondent and other Respondents in this petition, cannot suffice. The authorities cited by counsel to the Respondents are not on all fours with this principle of law. In the light of the foregoing constitutional provision, a political party and the candidate, sponsored by it, for an election, have a joint right or interest in the outcome of the election and both can present an election petition. For the aforesaid reason, the prayers of the Respondents for an order striking out reliefs 4 and 6 of the Petition, same having being sought in favour of a person not joined as party to this Petition, and other prayers relating thereto, are hereby dismissed.’]
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[PETITION SUCCEEDED]

I. Whether the Petitioner has proved its allegation, that the 2nd Respondent was, at the time of the election, not qualified to contest for the office of Governor of Kano State in the election held on the 18th of March, 2023?

RESOLUTION: IN PETITIONER’S FAVOUR.
A. THE UPDATED LIST OF MEMBERSHIP OF POLITICAL PARTIES WAS MADE DURING THE PENDENCY OF THIS SUIT
[‘The petition before this Honourable Tribunal was filed on the 9 th day of April, 2023. Ex facie, that would indicate that exhibit P163, P163a and 2R20(x), submitted to INEC was made and submitted by the 3 rd Respondent to INEC, after the filing of this petition. It is crystal clear, that in view of the time of making the document and the date of filing of the petition, the irresistible conclusion is that the said Exhibits were tailored for the purposes of this suit. Counsel to the 3 rd Respondent, tendered Exhibit 3R1 as a register of members of Gwale Local Government, Diso Chapter of Kano State.’

‘Upon this background, this Honourable Tribunal ascribes no probative value or weight to exhibits P163, P163(a), P163(b) and 2R20X and exhibit 3R1, because they are documents made during the pendency of this petition. The overriding raison d’etre of the legislation in our humble view, is that the Tribunal would not allow a person interested in the outcome of a litigation to cook up a document during the pendency of a suit, or in its anticipation, in order to defeat the course of justice.’]

B. THE 2ND RESPONDENT WAS NOT A MEMBER OF THE 3RD RESPONDENT AS AT THE TIME OF THE ELECTION
[‘It is the view of this Tribunal, that going by the above Supreme Court authority, every candidate at an election must at all stages of the election and the process, have an existing and unbroken membership of the political party sponsoring him at the election. If the candidate of the political party is shown not to be a member of the political party, at any stage of the electoral process, he would be said to not be in compliance with the requirement of the Constitution and the Electoral Act, thereby rendering his participation as null and void. It must be emphasized with the highest judicial authority that election does not mean the “poll”. It means the entire electoral process. It goes beyond casting of votes and declaration of winners. It is a process concerning with delimitation of constituency, nomination and accreditation of candidates, voting, counting the collation of votes, culminating in return or declaration of results. See the cases of OJUKWU VS OBASANJO & ORS (2004) EPR 616, 653 (2004) 12 NWLR (PT. 886) 169, IBRAHIM IDRIS VS ALL NIGERIA PEOPLES PARTY & ORS (2008) 8 NWLR (PT. 1088) 1 AT 168.’

‘The point here, is that at all times material to the electoral process culminating in the declaration of the winner at the election, all the candidates must be lawful members of the political party sponsoring them. The issue for determination here is whether the 2 nd Respondent is a member of the 3 rd Respondent at all times material to the election in which he emerged the winner? From these authorities, it follows, in line with the case of DR. OKEY ENEMUE VS CHIEF CHIDI DURU & ORS (2004) 9 NWLR (PT. 877) 75 AT 112, as per Ogunbiyi JCA, that It is also obvious that the issues of candidature, nomination, screening, clearance and contesting as candidate are very paramount and significant and which must precede the winning of any election. Without such, preliminaries having been conducted, it is impossible that any candidate would have been eligible for an election. Further in support of the above, it is the law in Nigeria that the requirement for contesting an election as settled in long line of Supreme Court authorities, is that no one can contest an election without first and foremost being a member of a registered political party and secondly, being sponsored by that party as a candidate for the election. In the case of BUHARI VS OBASANJO (2005) 2 NWLR (PT. 910) 241, the Court of Appeal stated that the register of members of a political party is not the only proof of who is a member of the party. It is the view of this Honourable Tribunal, that there are other ways of proving membership of a political party which include; the letter of sponsorship by the sponsoring party, membership identification, the publication of names of nominated candidates of political parties by INEC, and the nomination form of the candidate etc. It is unfortunate that the Respondents, particularly the 2 nd and 3 rd Respondents failed to tender before this Honourable Tribunal any of those other means as listed above in proving the 2 nd Respondent’s membership of the 3 rd Respondent. Without a lawful membership, there cannot be a lawful sponsorship. See the case of DR. OKEY ENEMUO VS CHIEF CHIDI DURU & ORS (SUPRA). For the court of law to support the sponsorship and election of a person who is not a member of the political party, will amount to introducing anarchy into the political system and will not serve the interest of the polity. See IBRAHIM VS BADAMOSI KABIR & ORS (2011) 2 NWLR (PT 1232) 417 AT 442. The Respondents therefore failed to discharge the burden of proof which shifted to them to prove that the 2 nd Respondent is a member of the 3 rd Respondent at the time of the election into the office of Governor of Kano State. In the circumstances, this issue is hereby resolved in the favour of the Petitioner and against the Respondents.’

Available:  Nosa Ehanire Osaghae v Nigeria (2017) - ECOWAS

‘On the strength of the foregoing, we hold that the 2 nd Respondent was not qualified to be nominated to contest the 2023 General Election, because he was not a member of the 3 rd Respondent and his name is not contained in the register of members submitted by the 3 rd Respondent to the 1 st Respondent in compliance with the provision of Section S177 (c) of the Constitution of the Federal republic of Nigeria 1999 (as amended) and S134 (1) of the Electoral Act 2022.’]
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II. Whether from the totality of the evidence adduced, the Petitioner has proven that the election into the office of Governor of Kano State held on the 18 th day of March, 2023 and the eventual declaration of the 2nd Respondent as the winner of the election was invalid by reason of substantial non-compliance with the provision of the Electoral Act?

RESOLUTION: IN PETITIONER’S FAVOUR.
A. THERE WAS SUBSTANTIAL NON-COMPLIANCE
[
INEC ADMITTED THERE WAS OVER-VOTING
‘Very importantly, the 1 st Respondent (INEC) who conducted the election made many open admissions in her reply to the petition in respect to the allegation of over voting, disruption, nonaccreditation, emergency declaration and violence, non-conduct of elections and disenfranchisement of voters, voters resistance to the use of BVAS or BVAS by pass, killing of innocent Nigerians on the election day, general wave of unrest and lawlessness during the conduct of the election.’

HOODLUMS INVADED THE ELECTION
‘From the pleadings of the 1 st Respondent (1 st Respondent’s Reply) as replicated above, there is no doubt that the 1 st Respondent admitted that election results in some of the polling units listed by the Petitioner in Tables 4, 5 and 6 of the petition were cancelled, due to over voting and willful obstruction and/or resistance to deployment/distribution of materials, voters resistance etc. The 1 st Respondent admitted unequivocally that hoodlums invaded majority of the polling units listed by the Petitioner in table 6 of the petition. The 1 st Respondent, to say the least, emphatically admitted that hoodlums brought their own already thumb printed ballot papers wherein they brutally forced the presiding officers to fill the result sheet in form EC8A and upload same to IREV at gun point. See Paragraphs 79 of the 1 st Respondent’s Reply to the petition. Strangely, the hoodlums in a gestapo fashion akin to the attitude of hardened criminals and marauders rigorously resisted the use of BVAS device for accreditation.’

PETITIONER PROVED SUBSTANTIAL NON-COMPLIANCE
‘From the evidence before this Honourable Tribunal, we hold that the Petitioner successfully proved that there was substantial noncompliance with the provisions of the Electoral Act in respect to ground one of her petition, having regard to the case of over voting, disruption,, non-accreditation, emergency declaration, violence, non-conduct of election, disenfranchisement of voters, voters resistance to the use of BVAS or BVAS by pass, general wave of unrest and lawlessness and killing of innocent Nigerians. The Petitioner proved by documentary evidence and by the admission of the 1 st Respondent, alleged cancellation of election results for over voting in the polling units contained in table 4 of the petition. The petitioner proved by documentary evidence and through the admission of the 1 st Respondent of the violence in the polling units listed in table 5 of the petition. The Petitioner proved by documentary evidence and through the admission of the 1 st Respondent, of failure of the 1 st Respondent to hold election in the polling units listed in table 6 of the petition. The petitioner also proved by documentary evidence and through the admission of the 1 st Respondent, the disenfranchisement of voters in the polling units listed in tables 7 and 8 of the petition.’

VOTES IN UNDATED AND UNSIGNED DOCUMENTS ARE INVALID, THOSE VOTES MUST BE DEDUCTED FROM THE TOTAL VOTES
‘Against this background, this Tribunal, without any hesitation, is of the firm view that the votes in Exhibits P5, P6- P16c, P18-P34a in the aforementioned Local Governments totaling 165, 616 votes are invalid, by virtue of not having the names, signature, date and stamp of the officials of the 1 st Respondent. The failure of the Presiding Officer to sign, stamp and affix his name on the result is a major vitiating factor in the light of Section 63 of the Evidence Act, 2022. It is trite law, that where a Presiding Officer failed to sign, stamp or date a polling unit result, the result becomes invalid for lack of authenticity and non-compliance with the provisions of the Electoral Act. See the following cases: PDP VS IDRISSU (2019) LPELR-49213 (CA) 19-21, HON. HARUNA MOHAMMED VS BELLO HASSAN ABDULLAHI, unreported decision of the Court of Appeal No: CA/A/EPT/957/2019 delivered on 15 th November, 2019, ALAMU & ANOR VS RIJAU & ORS (2021) LPELR-55639 (CA). Having invalidated the votes in respect of the affected Local Governments, it is natural and a logical sequence, that any tribunal that declared votes as illegal, according to the facts, evidence and the law, must proceed to the next step, by exercising its duty to deduct and take away all such votes from the total votes scored and credited to the affected candidate(s).’]
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✓ DECISION:
‘From the foregoing and in answer to the question as to whether there is ground not to declare for a bye election, this Honourable Tribunal hereby holds that there is the existence of 165, 616 invalid votes discovered by this Tribunal which figure is over and above the margin of lead between the 2 nd Respondent and the Petitioner. By the calculation of this Tribunal as garnered from the records of this Court, the invalid votes wrongly credited to the 2 nd Respondent is 165, 616. The 2 nd Respondent was returned wrongly with a vote of 1, 019, 602. The Petitioner was credited with 890, 705 lawful votes. The justice of this matter now demands, that the invalid votes be and is hereby deducted from the 1, 019, 602 wrongly credited to the 2 nd Respondent which mathematically brings the total lawful votes of the 2 nd Respondent to 853, 986. In view of the above calculation, this Honourable Tribunal have found as of fact and figures, that the Petitioner who scored 890, 705, is clearly the winner of the Governorship election of Kano State held on the 18 th day of March, 2023. In view of the above calculation, this Honourable Tribunal have found as of fact and figures, that the Petitioner who scored 890, 705, is clearly the winner of the Governorship election of Kano State held on the 18 th day of March, 2023. The Petitioner having satisfied the mandatory provision of Section 179 (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 136 (2) of the Electoral Act, 2022 is hereby declared to be the candidate who scored the majority of lawful votes cast. Consequently, this petition succeeds and this Honourable Tribunal hereby make the following orders: 1. It is hereby determined that the 2 nd Respondent was not duly elected by a majority of lawful votes at the election. 2. It is hereby determined that the Petitioner, NASIRU YUSUF GAWUNA having scored a majority of lawful votes and having met the constitutional requirement, is hereby declared the winner of the election and returned elected as the Governor of Kano State. 3. That the Certificate of Return issued to the 2 nd Respondent by the 1 st Respondent is hereby set aside as invalid and a nullity. 4. The 1 st Respondent is hereby ordered to immediately issue and serve a Certificate of Return in favour of the candidate of the Petitioner, NASIRU YUSUF GAWUNA as the winner of the 2023 Gubernatorial election for Kano State held on the 18 th of March, 2023.’

➥ FURTHER DICTA:
⦿ GROUND; GROUND FOR QUESTIONING AN ELECTION
It is trite law, that a Petitioner is required to question an election on any of the grounds set out in Section 134 (1) of the Electoral Act, 2022. For ease of reference, Section 134(1) of the Electoral Act, 2022 provides as follows: “An election may be questioned on any of the following grounds – a. A person whose election is questioned was at the time of the election not qualified to contest the election; b. The election was invalid by reason of corrupt practices and non-compliance with the provisions of this Act; or c. The Respondent was not duly elected by majority of lawful votes cast at the election. What then is the meaning of the word “ground”? In the case of KALU VS CHUKWUMERIJE (2012) 12 NWLR (PT. 1315) 425 AT 485, the Court of Appeal per Owoade, JCA puts it succinctly, thus: “The Compact Edition of the Oxford English Dictionary (1971) US reprint (1988) defines the word “Ground” in numerous terms and with an array of examples at pages 1214 to 1225 as follows: “Ground”: (a) The fundamental constituent or the essential part of anything. (b) A fundamental principle, also the elements or rudiments of any study or branch of knowledge. (c) A circumstance on which an opinion, inference, arguments, statement or claim is founded, or which has given rise to an action, procedure or mental feeling, a motive often with additional implication. A valid reason justifying motive or what is alleged as such.” Thus, a ground in the context of an election petition, is the fundamental reason, basis or justification for questioning the election. Before a party can question an election, his petition must fall within the grounds specified by the Electoral Act 2022. See the following cases: OYEGUN VS IGBENEDION & ORS (1992) 2 NWLR (PT. 226) 947; OKONKWO VS INEC & ORS (2003) 3 LRECN 599; ABUBAKAR VS INEC (2020) 12 NWLR (PT. 1737); and MODIBO VS USMAN (2020) 3 NWLR (PT. 1712) 470. — A. Osadebay, J.

⦿ SPONSORSHIP OF A CANDIDATE FOR AN ELECTION IS AN INTERNAL AFFAIR OF THE PARTY
The courts have held in a plethora of cases that the issue of membership of a political party is an internal affair of the political party. It has been consistently held, that it is only the party (in this case, the 3 rd Respondent), that has the prerogative of determining who are its members and the 3 rd Respondent, having sponsored the 2 nd Respondent as its candidate for the Governorship Election in Kano State on the 18 th of March 2023, the 2 nd Respondent has satisfied the requirement of being a member of the 3 rd Respondent as provided for in S134 (1) (a) of the Electoral Act 2022. Consequently, it has been held, that is not within the right of the Petitioner at this stage and after the nomination, sponsorship of the 2 nd Respondent by the 3 rd Respondent as its candidate, to question the 2 nd Respondents membership of the 3 rd Respondent, as it is an internal affair of the party. — A. Osadebay, J.

Available:  Thomas E. Dowling v. Inspector-General of Police (1961)

⦿ STATING ADDRESS FOR SERVICE IN AN ELECTION PETITION
Paragraph 4 (4) of the First Schedule to the Electoral Act, 2022 provides as follows: “Paragraph 4 (4); “at the foot of the election petition, there shall also be stated an address of the petitioner for service at which address documents intended for the petitioner may be left and its occupier. We have carefully gone through the petition filed by the Petitioner and we hold that the Petitioner complied with the provision of paragraph 4(4) of the First Schedule to the Electoral Act 2022. This is because the Petitioner copiously stated at the foot of the election petition, his address for service, at which address documents or all Court processes relating to this petition may be served on the Petitioner and the Petitioner equally indicated who the occupier of that address is. — A. Osadebay, J.

⦿ NO LAW PRESENTLY PROHIBITS A COUNSEL FROM DEPOSING TO AN AFFIDAVIT
The preliminary point raised by the Petitioner/Respondent that the motion of the 3 rd Respondent be dismissed, because the affidavit in support is sworn to by a legal practitioner in the law firm of counsel representing the 3 rd Respondent, is not sustainable. Our simple answer to this, is that there is no law that prohibits a counsel from deposing to an affidavit, if the counsel is conversant with the facts, or where the facts are within his personal knowledge. See the case of SODIPO VS LEMMINKAINEM (1986) 1 NWLR (PART 15) 220. In view of this, the motion of the 3 rd Respondent cannot be dismissed for the aforesaid reason. — A. Osadebay, J.

⦿ IN REPLY TO RESPONDENT’S REPLY, PETITIONER SHOULD NOT SET-UP A DISTINCT CASE
Paragraph 16(1) of the 1 st schedule to the Electoral Act 2022 stipulates as follows; ‘If a person in his reply to the election petition raises new issues of facts in defence of his case which the Petition has not dealt with, the petitioner shall be entitled to file in the Registry within five days from the receipt of the respondent’s reply, a Petitioner’s reply, in answer to the new issues of fact’ A literal and unambiguous reading and interpretation of this provision presupposes that the Petitioner has the liberty to file a reply in the light of new issues of facts in a Respondents reply. It has been emphasized in various authorities, that where a party fails to file a reply in denial or rebuttal of new facts or issues raised in the Respondents reply, the Petitioner would have been deemed to have admitted the new issues raised by the Respondent. See the case MICHAEL V YOUOSO 2004 15 NWLR PT 895 PG 96. The only embargo, is that a Petitioner is not entitled to set up in their reply to the Respondent’s replies to their petition, either a new cause of action, grounds or new facts outside or inconsistent with their Petition. See the cases of EMERHOR V OKOWA 2016 11 NWLR PT 1522 PG 1 AT 32-33 PARAS G-G; SYLVA V INEC 2018 18 NWLR PT 1651 PG 310 AT 352 PARAS F-H and EZEA V& ANOR V UGWANYI & ORS 2015 LPELR -40644 (CA). — A. Osadebay, J.

⦿ REQUIREMENT FOR ADMISSIBILITY
It is trite, that the basic principle on admissibility in law, is whether the documents are duly pleaded; whether they are relevant to the facts in issue and whether they are admissible in Law? See the cases of AONDO AKAA V OBOT 7 OR 2021 SC; TORTI V UKPABI 1984 1 SC PG 370 and DIKIBO & ORS V IZIME 2019 LPELR – 48992-CA. There is no gainsaying the fact, that the certified true copies admitted by the court met the criteria on admissibility, as relevancy governs admissibility and the said documents were pleaded. See the cases of NAB LTD VS SHUAIBU (1991) 4 NWLR (PT. 186) 450, OKECHUKWU VS INEC (2014) 17 NWLR (PT. 1436) 256 AT 294-295. — A. Osadebay, J.

⦿ MATERIAL FACTS ARE WHAT ARE PLEADED NOT EVIDENCE
It is a trite and a resonated principle of our legal jurisprudence, that you plead material facts and not the evidence to be relied upon and the evidence to be relied upon can be tendered in support of those facts. — A. Osadebay, J.

⦿ CASES ARE AUTHORITIES FOR WHAT THEY DECIDE
It is trite law that cases are authorities for what they decide such, that it is not helpful to flog authorities where the facts and circumstances of cases are different. See PDP VS INEC (2018) LPELR-44373 (SC) AND OLLEY VS TUNJI (2015) 10 NWLR (PT. 1362) 374. — A. Osadebay, J.

⦿ NON PRODUCTION OF QUALIFICATION GOES TO WEIGHT NOT ADMISSIBILITY
It is the considered view of this tribunal, that the contention of learned counsel to the 2 nd Respondent, that Pw32, did not produce before the tribunal, his qualification or certificate, to satisfy the tribunal of his qualification as an expert witness pursuant to S68 of the Evidence Act 2011 does not go to the admissibility of the report Exhibit P169, but to the weight to be attached to the report, if the court finds so. — A. Osadebay, J.

⦿ INFORMATION FED INTO THE COMPUTER AND PRINTED IS NOT COMPUTER-GENERATED DOCUMENT
Furthermore, this tribunal agrees in toto with the submission of the Petitioner’s counsel, that the argument of the 2nd Respondent on the inadmissibility of Exhibit P169, on account of the fact that it is a computer generated document, is misconceived. We agree that the report is a product of information fed into the computer and printed and such documents are different from computer generated documents. If not so, its implication is, that every information fed into a computer by anyone would have to be certificate compliant, which is definitely not the intention of Section 84 of the Evidence 2011 and we so hold. — A. Osadebay, J.

⦿ COURT RESTRICT ITSELF TO THE ENGLISH VERSION OF THE STATEMENT ON OATH
On the 12 th day of July, 2023 when PW19 (Sani Al-Hassan Inuwa) testified before this Honourable Tribunal, Learned Counsel to the Respondents raised objection regarding the discrepancies and manifest inconsistencies between the two versions of the written statements on oath of this witness, in that the content of the English version of the evidence of this witness, is distinct from the Hausa version. We have read through the written statements on oath of this witness and we agree with the Respondents that the Hausa version of the evidence of this witness is totally different from the English version. This Honourable Tribunal shall therefore restrict herself to the English version of the written statement on oath of PW19. Having determined the objections to the admissibility of documents, this Tribunal shall proceed to determine the merits of this petition. — A. Osadebay, J.

⦿ DOCUMENTS MADE WHILE ELECTION IS PENDING – SECTION 83(3) EA; ALSO EXCEPTION
In resolving this issue, it is necessary to have recourse to section 83(3) of the Evidence Act, 2011, provides thus: “Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish” The import of this section, is that before a document could be rejected as inadmissible, it must not only be made when litigation was pending or anticipated, but the person making it must be interested. It is not in dispute, from the dictates of the letters and their annexure updated membership lists, that exhibits P163 and P163(a) were made and dated the 28 th day of April, 2023 and June 9, 2023 and were submitted and received by the 1 st Respondent on the 3 rd day of May, 2023 and 6 th of July 2023 respectively. Both Exhibits P163(b) and 2R20(x), (which as said by this tribunal are the same, as one is an extract of the other), are not dated nor signed. The position of the law generally speaking, in relation to documents prepared in anticipation of impending litigation, is that such documents are not admissible in evidence, although there are exceptions to this general rule. See the cases of ANISU VS OSAYOMI (2008) 15 NWLR (PT. 110) PAGE 246 AT 275, ABDULLAHI VS HASHIDU (1999) 4 NWLR (PT. 600) 638 AT 645, ANYANWU VS UZOWUAKA (2009) 13 NWLR (PT. 1159) 445 AT 476. The exception to this general rule, excludes documents made in anticipation of litigation, by a person who is not personally interested in the outcome of the litigation. The operative words, as far as the exceptions are concerned, are “persons not personally interested in the outcome of the litigation”. In other words, it relates only to a situation, where such a person relying on such documents, has no personal interest in the matter, as against mere interest in an official capacity. In the instant case, the exceptions do not apply here. This is because the maker of exhibit P163, P163(a) and exhibit 2R20X is the 3rd Respondent, who is a party in this Election petition and clearly has exhibited her interest in the ultimate result of the proceedings for the simple reason that the temptation to protect her interest is clearly overwhelming. See the following cases: ALIYU VS ADEWUYI (1996) 4 NWLR (PT. 442) 284, GBADAMOSI VS KANO TRAVELS LTD (2000) 8 NWLR (PT. 608) 243, GAMJI NIG. COMP. LTD VS NIG. AGIP OIL. COMP. LTD (2018) LPELR- 49215 (CA). — A. Osadebay, J.

⦿ THE TWO FACETS OF BURDEN OF PROOF
The phrase burden of proof in civil cases has two distinct meanings which are; firstly, there is the pleadings, it is the legal burden of proof or the burden of establishing a case. Then secondly, there is the burden of proof in the sense of adducing of evidence, which is described as the evidential burden. The burden of proof in the first sense is always stable, but the burden of proof in the second sense, oscillates and constantly shifts like a chameleon changing its colour, according to how the evidence preponderates on the scale of justice. See the cases of ODUKWE VS OGUNBIYI (1998) LPELR- 2239 PAGE 1 AT 17; (1998) 8 NWLR (PT. 561) 339, ADIGHIJE VS NWAOGU (2010) 12 NWLR (PT. 1209) 119 AT 463 AND OKOYE VS NWANKWO (2014) LPELR-23172 PAGE 1 AT 21; (2014) 15 NWLR (PT. 1429) 93. It is settled law, that in civil cases, the legal burden of proof in the sense of establishing a case lies on the claimant/Petitioner as in this petition, being the person who would fail if no evidence was adduced at all. However, this is not invariably so, as there are circumstances in our adjectival law, when the burden of proof shifts to the defendant. /Respondent as in this petition. See the cases of OSAWARU VS EZEIRUKA (1978) 6-7 SC 135 AT 145, NWAVU VS OKOYE (2008) LPELR-2116 PAGE 1 AT 31, (2008) 18 NWLR (PT. 1118) 29 AND EZEMBA VS IBENEME (2004) LPELR-1205 PAGE 1 AT 20-21. AGAGU & ORS V MIMIKO 2009 LPELR 21149 (CA); BOLAJI & ANOR V INEC & ANOR 2019 LPELR 49447 (CA); SEN JULIUS ALIUCH & 1 OR V CHIEF MARTIN N. ELECHI 7 2 ORS 2012 LPELR -7823 SC PG 43 PARAS B-E. — A. Osadebay, J.

⦿ PURPORT OF A FREE AND FAIR ELECTION
A free and fair election is one in which all eligible voters who are willing to vote are given every opportunity to cast their votes which must be counted and declared for the candidate of their choice. See the case of JIMOH VS ADEKUNLE (1991) 1 LRECN 123. The essence of democratic elections, it has been held, is that they be free, fair and that in that atmosphere of freedom, fairness and impartiality, citizens will exercise their freedom of choice of who their representatives shall be by casting their votes in favour of those candidates who, in their deliberate judgment, they consider to possess the qualities which mark them out as preferable candidates to those others who are contesting with them. See the case of OJUKWU VS ONWUDIWE & ORS (1984) 1 S 15 AT 91. The above essential tenets of democratic elections are fundamentally negatived by election rigging. — A. Osadebay, J.

Available:  Akazor Gladys & Ors. V. Council of legal education (NICN/ABJ/346/2017, 20th day of March 2019)

⦿ ELECTION RIGGING REFERS TO
Basically, election rigging refers to electoral malpractices which are palpable illegalities such as over voting, disruption of election, emergency declaration, violence, non-conduct of election, disenfranchisement of voters, voters resistance to the use of BVAS or BVAS by pass and so on, which no doubt will substantially affect the result of any election in any civilized jurisdiction and therefore translate to non-compliance with the provisions of the Electoral Act. — A. Osadebay, J.

⦿ DOCUMENTARY EVIDENCE IS THE BEST FORM OF EVIDENCE
Tritely, the best form of evidence for the resolution of election matters are documentary evidence. A complaint that a candidate did not score the majority of lawful votes at the election is an invitation to compare and contrast figures. See the case of ANOZIE VS OBICHERE (2008) 8 NWLR (PT. 981) 140 AT 155 PARAS. H. In election petition cases the decision of the Court, particularly when the issue is as to who had the majority of lawful votes, is based largely on documentary evidence, mainly election result forms. See the case of NGIGE VS OBI (2006) 14 NWLR (PT. 2006) 14 NWLR (PT. 999) 1 AT 233. It is trite that results of election declared by an independent electoral commission are presumed correct, authentic and genuine. See SECTION 168 (1) OF THE EVIDENCE ACT (AS AMENDED) 2022. Thus, in order to rebut the presumption of regularity in favour of the election results declared by INEC, the admissibility, inadmissibility and the probative value of Forms EC8As, EC8Bs, EC8Cs, EC8D, EC8E, etc, will be seriously contested. On the veracity of documentary evidence, it has been held that a Court is right to place a greater value on documentary evidence than oral testimony. As the most reliable if not the best evidence, is documentary evidence. It is certainly more reliable than oral evidence. When tendered and admitted in Courts are like words uttered and speak for themselves, on the strength of which the tribunal has powers to add to the votes found to have been wrongly excluded to the score by the affected candidate. See the following cases: SAM V. EKPELU (2001) 1 NWLR (PT. 642) 582 – 797, FAYEMI VS. ONI (2009) 7 NWLR (PT. 1140) 223, AIKI VS. IDOWU (2006) 9 NWLR (PT. 984) 47 AT 65. Therefore, in the resolution of this issue, it will be on the dissection of the principles governing election result forms and documents and the admissibility of the same. — A. Osadebay, J.

⦿ ESSENCE OF PUBLIC DOCUMENT CERTIFICATION
The essence of certification of a public document is to show that the contents of the document are the same with the original. See the case of OWOR VS CHRISTOPHER & ANOR (2008) LPELR-4815, OKADIGHO & ORS VS OJECHI & ORS (2011) LPELR-4687. — A. Osadebay, J.

⦿ THE JUDICIARY WILL NOT BE INTIMIDATED DESPITE HARASSMENT
The 2nd Respondent presided over a state where anarchy was being supported and prevented Agents of the Government were allowed to malign the Judiciary. The Judges of this Tribunal were harassed, intimidated and made to run under cover. What is the offence of the Judiciary. It is the duty of the Judiciary to disperse Justice and no more. The Judiciary is an arm of Government constituted by the Constitution of the Federal Republic of Nigeria. As stated above the Respondents contributed heavily in the success of this petition. At the pleading stage they made critical admissions. At the trial stage they supplied critical and important documents. Yet at judgment stage the 20 Respondent does not want this Tribunal to stand by justice by stating the truth of the matter. They took the position as was widely reported in the media both print and social that if they loose the case, they will kill the Judges and put the Residence of Kano State on fire. They threatened to bring unrest and banditry to Kano State. We are also citizens of this country in Kano to discharge our lawful duties. We have not committed any offence by performing our duty of adjudication. My message to the bandits in politics who want to take power by force is that the Judiciary cannot be intimidated. The Judiciary will never shy away from justice. Every Judge is a Soldier of justice, we are blessed with the courage to call a spade a spade and to do justice according to the law without fear or favour. Where a party purport to have his eyes on the Judiciary and remove same from his case, the Judiciary will still do its work. You remove your eyes from your case, you abandoned your case and concentrated on distracting yourself by having your jaundiced eye on the Judiciary. The Judiciary as represented by the Honourable Judges will concentrates on their duty of adjudication and put their own eyes on the law and justice. All judicial activities must necessarily and with the final decision of the Court. This is called a judgment. Upon the judgment of the Court parties can only acknowledge the decision of the Court, accord it respect and if not satisfied, go on appeal. A party who looses a case or anticipates the loss of his case can only prepare to appeal against the decision of the lower Court or prepare to appeal. This is what is obtainable in a civilised society. Kano State as we all know is a cradle of civilisation. No party on the account of loosing a case or on the basis of speculation of the possible loss of a case threaten to go an rampage against the Court and Honourable Judges. It is wrong to threaten the entire polity of Kano State with violence. A party must not threaten terrorism and mayhem on the people. The decision of the court must not be taken personal as to warrant an attack and violence against the Judiciary Functionaries as threatened by the Agents of the 2nd and 3rd Respondents. I use this opportunity to condemn the gang of Red Cap wearers who like a violent and terrorist cult chased us out of Kano and put us in the fear of our lives. We believe that only Allah is the giver of power. Those who believe in Allah must bow to his will and submit to the authority of Governmental power. Resort to anarchy, violence and killing can never be a source of lawful power. Threatening to put Honourable Judges in the danger of their life as done in Kano by some disgruntled bandits parading as politicians is hereby condemned. – Benson Anya, J.

➥ PARTIES:
⦿ PETITIONER
All Progressives Congress (APC)

⦿ RESPONDENT
Independent National Electoral Commission (INEC)

  1. Yusuf Abba Kabir
  2. New Nigeria People’s Party (NNPP)

➥ LEAD JUDGEMENT DELIVERED BY:
Hon Justice O. Akintan Osadebay

➥ APPEARANCES
⦿ FOR THE PETITIONER

⦿ FOR THE RESPONDENT
Bashir Yusuf Mohammad, for 2nd respondent.

➥ MISCELLANEOUS POINTS

➥ REFERENCED (LEGISLATION)
Inter alia, sections 24(5) and 135 Electoral Act 2023.

➥ REFERENCED (CASE)
⦿ QUALIFICATION TO CONTEST GOVERNORSHIP ELECTION
In the Supreme Court case of AL-HASSAN V ISIHAKU 2016 10 NWLR PART 520, PG 230, the court reiterated at pages 275- 276 PARAS H-A; 277 PARAS A-F as follows; “…Where it is alleged that a person is or was not qualified to contest election into the office of Governor as envisaged by section 138(1) (a) of the Electoral Act, it is S177 and 182 of the 1999 Constitution (as amended) that are being contemplated. Taking the provisions together, it is seen that both the provision for qualification and that for disqualification are so comprehensive which makes them exhaustive. Thus the Constitution, as the Supreme law of the land, having such elaborate and allencompassing provisions for qualification and disqualification of persons seeking the office of Governorship of a state, does not leave any room for addition to those conditions already set out. Once a candidate sponsored by his political party has satisfied the provisions set out in S177 of the Constitution and is not disqualified under S182 (1) thereof, he is qualified to stand for election to the office of Governor of a State. No other law can disqualify him (P.D.P V INEC (2014) 17 NWLR (PT 1437) 525, Shinkafi V Yari (2016) 7 NWLR (PT 1511) 340 referred to (Pp 275, paras H_A;277 Paras A-F.”

⦿ IT IS A POLITICAL PARTY OR ITS CANDIDATE WHO CAN CHALLENGE AN ELECTION
In the case of ALL PROGRESSIVE CONGRESS V PEOPLES DEMOCRATIC PARTY 2019 LPELR-49499 CA, in the interpretation of the provision of S137(1) of the Electoral Act 2010, which provision is in pari material with the extant provisions of S133 (1) (a) and (b) the Electoral Act 2022, the Court of Appeal, Per Ali Abubakar Babandi Gummel JCA, took the stance that: ‘….it is clear from this provision, that either the political party, or its candidate for the election, or both of them jointly can present an election petition….this provision recognizes that a political party, can in its name, present an election petition challenging the election for the benefit of the candidate and itself….’ Ditto, in the lead judgment delivered by per Emmanuel Akomaye Agim JCA, the court reiterated and expounded as follows; ‘….therefore such a petition is a representative action by the political party on behalf of its candidate for the election and its members, the political party’s candidate for the election is an unnamed party for his benefit and that of the political party. An unnamed party in a representative action is a party to the action…….”

⦿ ADDITIONAL STATEMENT ON OATH VS REPLY STATEMENT ON OATH
In the case of ALHAJI ISIAKA GARBA & ANOR V ALHAJI AREMU BANNA 2014 LPELR – 24308 (CA), the court, Per Onyemena JCA, emphasized the proprietary of a reply statement on oath, accompanying a Petitioners reply when it reiterated thus, in distinguishing between an ‘additional statement on oath’ and a ‘Reply statement on oath’ ‘A reply statement of oath is sworn evidence made to proof facts contained in a claimants reply to defendant’s statement of defence. The reply statement on oath does not add nor revise the claimant’s statement on oath. It is only necessary and allowed in proceedings to enable the claimant proof facts in response to defendants fresh issues raised outside the claimants pleadings. Accordingly, a reply statement on oath is that sworn evidence of a claimant which seeks to prove facts in his reply statement as a result of fresh, unique, novel and further averments introduced to the defendant’s statement of defence outside the claimant’s statement of claim. See Egesimba v Onuzuruike 2002 15 NWLR PT 791 PG 466. Clearly therefore, an additional statement on oath is different from a reply statement on oath of a claimant……….’ — A. Osadebay, J.

⦿ COURT OF LAW SHOULD NOT DECIDE A CASE BASED ON SPECULATION
In the case of VICTOR ISONGUYO VS STATE (2023) 3 NWLR (PT. 1872) 519, the Supreme Court held thus: “A court should not decide a case on mere conjecture or speculation. Court of laws are courts of facts and law. They decide issues on facts established before them and on law. They must avoid speculation. A court cannot decide issues on speculation, no matter how close what it relies on may seem to be on the facts. Speculation is not an aspect of inference that may be drawn from facts that are laid before the Court. Inference is a reasonable deduction from facts, whereas speculation is a mere variant of imaginative guess which, even when it appears plausible should never be allowed by a court of law to feel any hiatus in the evidence before it.”

➥ REFERENCED (OTHERS)

End

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