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Fannami vs. Bukar

MUSTAPHA FANNAMI

V

ALHAJI GAJI BULAMA BUKAR

INDEPENDENT NATIONAL ELECTORAL COMMISSION

THE RESIDENT ELECTORAL COMMISSIONER

ELECTORAL OFFICER, GUBIO LOCAL GOVERNMENT

THE RETURNING OFFICER FOR GUBIO LOCAL GOVERNMENT

THE RETURNING OFFICER FOR GUBIO I WARD

THE RETURNING OFFICER FOR GUBIO II WARD

PRESIDING OFFICER, MALLAM SULLUMUTI II POLLING UNIT

PRESIDING OFFICER, BUHARI POLLING UNIT

PRESIDING OFFICER, LAWANTI II POLING UNIT

PRESIDING OFFICER, MASHOFANAMAN I POLLING UNIT

PRESIDING OFFICER, YAUMARI II POLLING UNIT

PRESIDING OFFICER, TUJA GALO POLLING UNIT

PRESIDING OFFICER, DUSUWA II POLLING UNIT

PRESIDING OFFICER, LAWANTI I POLLING UNIT

PRESIDING OFFICER, KANDAUMARI POLLING UNIT

PRESIDING OFFICER, BUSSAMIRI I POLLING UNIT

PRESIDING OFFICER, AWANARI II POLLING UNIT

PRESIDING OFFICER, MARKER AREA V POLLING UNIT

PRESIDING OFFICER, BASAM POMPOMA I POLLING UNIT

COURT OF APPEAL

( JOS DIVISION )

MARIAM ALOMA MUKHTAR, JCA ( Presided )

OLUDADE OLADAPO OBADINA, JCA

IFEYINWA CECILIA NZEAKO, JCA ( Read the Lead Judgment )

CA/J/180/2003

THURSDAY, 4TH DECEMBER, 2003

APPEAL - Appellate court - Whether will ordinarily disturb the findings of the lower tribunal

APPEAL - Findings of fact - Whether appellate court will ordinarily disturb findings of the lower tribunal

APPEAL - Ground of appeal - Competent and incompetent grounds Whether can be argued together

APPEAL - Ground of appeal - Need to relate to judgment appealed against

APPEAL - Ground of appeal - Where inelegantly formulated - Whether can be struck out

APPEAL - Ground of appeal where it alleges error in law and misdirection in fact - Whether competent

APPEAL - Grounds of appeal - Framing of - Principles guiding and their sources

APPEAL - Issue for determination - Need for to be covered by a ground of appeal


APPEAL - Issue not canvassed or decided before lower court - Whether appellate court has jurisdiction over

APPEAL - Issues for determination - Parties who may settle

APPEAL - Issues for determination - Purpose of formulating

APPEAL - Jurisdiction of appellate court - Whether exists over issue not canvassed before the lower court

COURT - Appellate court - Jurisdiction of over an issue not canvassed before the lower court - Whether exists

COURT - Inference - Power of court to draw from evidence before it

COURT - Trial court - Whether has privilege to believe or disbelieve witnesses

CRIMINAL LAW AND PROCEDURE - Election petition - Criminal allegation therein - Whether must be proved beyond reasonable doubt

ELECTORAL MATTER - Election petition - Criminal allegation therein -  Whether must be proved beyond reasonable doubt

ELECTORAL MATTER - Electoral malpractice or irregularities Allegation of  - Need to be proved

ELECTORAL MATTER - Independent National Electoral Commission (INEC) - Failure of to supply and distribute ballot papers to polling units and stations - Effect

ELECTORAL MATTER - Independent National Electoral Commission ( INEC) - Responsibility and duty of

ELECTORAL MATTER - Over-voting, rigging, or substantial noncompliance with electoral laws - Allegation of - Whether will invalidate an election

ELECTORAL MATTER - Return of ballot papers - How to successfully challenge - Disenfranchisement of voters - How to make a case that voters were disenfranchised

ELECTORAL MATTER - Voters - Disenfranchisement of - How to make a case that voters were disenfranchised - How to successfully challenge return of ballot papers

EVIDENCE - Burden of proof - Failure to discharge - Effect thereof

EVIDENCE - Criminal allegation in Election Petition - Need for to be proved beyond reasonable doubt

EVIDENCE - Electoral malpractice or irregularities - Allegation of Need to proved

EVIDENCE - Inference of fact - Whether court can draw from evidence before it

EVIDENCE - Presumption - Presumption of regularity or ‘Omnia preasumuntur rite esse acta’  explained

EVIDENCE - Rebuttal - Quality of evidence which calls for from the opposite party

EVIDENCE - Witnesses - Privilege of trial court to believe or disbelieve

JURISDICTION - Appellate court - Whether has jurisdiction over issue not canvassed before lower court

JUSTICE - Slip or misdirection - Whether every of such is fatal to cause of justice

MAXIM - ‘Omnia preasumuntur rite esse acta’ - Presumption of regularity explained

PRACTICE AND PROCEDURE - Costs - Stage of proceedings when same is pronounced

PRACTICE AND PROCEDURE - Costs - Whether matter within the discretion of the court or tribunal

PRACTICE AND PROCEDURE - Record of proceedings - Challenging correctness of vis-a-viz amendment of - Different procedures involved

PRACTICE AND PROCEDURE - Record of proceedings - Procedure for challenging the correctness of

PRACTICE AND PROCEDURE - Slip - Whether every slip or misdirection is fatal to cause of justice

Issues:

1.              Whether the appellant led such evidence before the tribunal as would entitle him to relief sought if properly evaluated by the tribunal and, having regard to the fact that the respondents led no evidence, in rebuttal.

2.              Whether or not the tribunal failed to and/or was right when it did not consider the burden of proof placed on the 2nd - 21st respondents to displace appellant’s evidence of over-voting, rigging and discrepancies in and of over/under supply of ballot papers.

3.              Whether there was speculations and guesses made on matters not before the tribunal which occasioned miscarriage of justice.

4.              Whether or not the tribunal awarded the costs set out in the records during the judgment in open court.

Facts:

The petitioner contested election to the Borno State House of

Assembly on the platform of the Peoples Democratic Party (PDP) in the 2003  General Elections, for the Gubio Local Government Consistuency. The 1st respondent of the All Nigeria Peoples Party (ANPP) was also a candidate at the said election, and he respondent won by a margin of 52 votes. The petitioner being dissatisfied, challenged the election result before the National Assembly/Governorship Legislative Houses election tribunal sitting in Maiduguri, Borno State.

The petition was based on the grounds that:

1.              That the 1st respondent was not duly elected by the majority of lawful votes cast at the election;

2.              Several invalid ballot papers were counted for 1st respondent

in 7 polling units listed in the petition; and

3.              The election was invalid by reason of corrupt practices and substantial non-compliance with the provisions of the Electoral Act 2002 etc.

The petitioner gave evidence and called 7 witnesses. Non of the respondents led evidence. At the conclusion of hearing and addresses, the Tribunal dismissed the petition. Aggrieved, the petitioner filed this appeal. The Court of Appeal had to consider, among others, whether the evidence led was credible and sufficient to sustain the petitioner’s allegations.