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Matori vs. Bauchi

ALH. ABUDULLAHI USMAN MATORI

V

ALH. AMINU MOHAMMED DAN BAUCHI

THE RETURNING OFFICER, BAUCHI

FEDERAL CONSTITUENCY - ALH. LAWAL TORO

INDEPENDENT NATIONAL ELECTORAL

COMMISSION (INEC)

COURT OF APPEAL

( JOS DIVISION )

OLUDADE O. OBADINA, JCA ( Presided and Read the Lead Judgment )

IFEYINWA CECILIA NZEAKO, JCA

IKECHI FRANCIS OGBUAGU, JCA

CA/J/175/2003

THURSDAY, 6TH NOVEMBER, 2003

APPEAL - Electoral matters - Practice and procedure governing appeals thereon

APPEAL - Reliefs sought in the notice and grounds of appeal - Whether binds or limits the Court of Appeal

APPEAL - Respondent intending to contend that judgment of the trial court be affirmed on ground other than those relied on - Proper procedure therefor

APPEAL - Respondent’s notice - Proper registry of court for filing of

CONSTITUTIONAL LAW - Election to the National Assembly - Disqualification of a candidate thereof on grounds of embezzlement or fraud - Whether prosecution by a court of law is a pre-condition under section 66(1)(h) of the 1999 Constitution

CONSTITUTIONAL LAW - National Assembly - Election to Disqualification of a candidate thereof on grounds of embezzlement or fraud - Whether prosecution by a court of law is a pre-condition under section 66(1)(h) of the 1999 Constitution

COURT - Court of Appeal - Reliefs sought in the notice and grounds of appeal - Whether binds or limits the Court of Appeal

DOCUMENT - ‘Draft’ document - Meaning of

DOCUMENT - Certified True Copy of public documents - How to make

DOCUMENT - Document produced from proper custody - Application of presumption of genuineness

DOCUMENT - Production of a document - Whether a person not in possession of can produce it

DOCUMENT - Public document - How proved

ELECTORAL MATTERS - Appeal to the Court of Appeal on election matters - Practice and procedure governing

ELECTORAL MATTERS - Candidates - Qualification of for an election -  When election tribunal can determine issue of

ELECTORAL MATTERS - Electoral Act, 2002 - Section 136 thereof Purport and intendment

ELECTORAL MATTERS - National Assembly election - Disqualification of a candidate thereof on grounds of embezzlement or fraud Whether prosecution by a court of law is a pre-condition under section 66(1)(h) of the 1999 Constitution

EVIDENCE - ‘Draft’ document - Meaning of

EVIDENCE - Document - Production of from proper custody Application of presumption of genuineness


EVIDENCE - Document - Whether need be pleaded

EVIDENCE - Documentary evidence - Effect of oral evidence thereon

EVIDENCE - Documentary evidence - Whether need be pleaded

EVIDENCE - Oral evidence - Effect of on documentary evidence

EVIDENCE - Onus of proof of existing facts - On whom lies

EVIDENCE - Production of document - Whether a person not in possession of document can produce it

EVIDENCE - Public document - Certified true copy of - How to make EVIDENCE - Public documents - How proved

GOVERNMENT - Government White Paper - Publication of - Proof of in the instant case

GOVERNMENT - Government White Paper - Where not published in a booklet form to enable members of the public buy it - Effect

GOVERNMENT - Report of Inquiry - How government manifests acceptance of

JUDICIAL PRECEDENT - Attorney-General, Kwara State vs. Alao (2000) 9  NWLR (Pt. 671) 84 distinguished

PLEADINGS - Documentary evidence - Whether need be pleaded

PLEADINGS - Joinder of issues in the pleadings - How determined

PRACTICE AND PROCEDURE - Appeals in election matters - Practice and procedure governing

PRACTICE AND PROCEDURE - Reliefs sought in the notice and grounds of appeal - Whether binds or limits the Court of Appeal

PRACTICE AND PROCEDURE - Respondent on appeal intending to contend that judgment of the trial court be affirmed on ground other than those relied on - Proper procedure therefor

PRACTICE AND PROCEDURE - Respondent’s notice - Proper registry of court for filing of

STATUTE - Electoral Act, 2002 -  Section 136 thereof - Purport and intendment

TRIBUNAL OF INQUIRY - Report of Judicial Commission of Inquiry -

How government manifests acceptance of WORDS AND PHRASES - ‘Draft’ document - Meaning of

Issues:

1.             Whether paragraph 8(a) of the petition was denied and issues joined on whether or not the Bauchi State Government accepted the indictment of 1st respondent by the Hon. Justice Bala Umar Judicial Commission of Inquiry on the fire disaster at the Bauchi Publishing and Printing Company Limited ( BPPC ).

2.             Whether the 1st respondent was qualified to contest election into the Bauchi Federal Constituency and if the answer is in the negative whether the appellant should have been returned as duly elected.

3.             Granted (without conceding) that 1st respondent was disqualified, whether appellant can be returned as duly elected.

Facts:

The petitioner/appellant commenced this action before the National Assembly/Governorship and Legislative Houses Election Tribunal which sat in Bauchi, Bauchi State, to challenge the election of the 1st respondent to the House of Representatives on the 12th day of April 2003. The petitioner/ appellant contested the election on the platform of the All Nigeria Peoples Party (ANPP); while the 1st respondent contested on the platform of the Peoples Democratic Party (PDP) and was returned elected as representative for Bauchi Federal Consistency. The petitioner pleaded that at the time of the election, the 1st respondent was not qualified to contest by virtue of the provisions of the 1999 Constitution. The particular facts which were alleged to disqualify the 1st respondent was that he was indicted for embezzlement and fraud by a Judicial Commission of Inquiry set up by the Bauchi State Government, headed by Justice Bala; and that he made a false declaration under oath about his criminal records.

The petitioner called witness to prove his case but the respondents did not. Instead they rested their case on the petitioner’s. Nevertheless, the Tribunal found no merit in the petition and dismissed same.

Aggrieved, the petitioner has filed this appeal. The appeal turns on the questions whether the 1st respondent qualified to contest the said election and the legal status of the documentary exhibit, exhibit “F” tendered by the petitioner, as Government White Paper.

The Court of Appeal considered parts of section 66 of the Constitution of the Federal Republic of Nigeria 1999 which provides:-

“(66)(1) No person shall be qualified for election to the Senate or the House of Representatives if ...

(h) he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunals of Inquiry Law or any other law by the Federal or State Government which indictment has been accepted by the Federal or State Government respectively.”

Sections 134 and 136 of the Electoral Act 2002 were also considered and they provide as follows:

“134(1) An election may be questioned on any of the following grounds that is to say -

(a)           that a person whose election is questioned was, at the time of the election not qualified to contest the election;

(b)          that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;

(c)           That the respondent was not duly elected by majority of lawful votes cast at the election; or

(d)          that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.

“136(1) Subject to subsection (2) of this section, if the Tribunal or the court as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal or the court shall nullify the election.

       2. If the Tribunal or the court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Election Tribunal or the court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and this Act.”