BEST LAW REPORT SUBSCRIPTION PRICE!!

  • Daggash v. Bulama
  • 212
  • 2004-06-21
  • ₦ 200
  • Buy Now

Daggash v. Bulama

ALHAJI MOHAMMED SANUSI DAGGASH

V

HAJJA FATI IBRAHIM BULAMA

INDEPENDENT NATIONAL ELECTORAL COMMISSION

THE RESIDENT ELECTORAL COMMISSIONER, BORNO STATE

THE RETURNING             OFFICER FOR THE

SENATORIAL ELECTION FOR BORNO NORTH SENATORIAL DISTRICT

THE RETURNING OFFICER FOR KAGA LOCAL GOVERNMENT FOR THE SENATORIAL ELECTION FOR BORNO NORTH SENATORIAL DISTRICT

THE RETURNING OFFICER FOR DONGO WARD OF KAGA LOCAL GOVERNMENT AREA FOR THE BORNO NORTH SENATORIAL DISTRICT

THE ELECTORAL OFFICER FOR KAGA LOCAL GOVERNMENT AREA

THE RETURNING OFFICER FOR GUZAMALA LOCAL GOVERNMENT AREA FOR THE SENATORIAL ELECTION FOR THE BORNO NORTH SENATORIAL DISTRICT

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/152/2003

THURSDAY, 6TH NOVEMBER, 2003

ACTION - Justiciability of an action - How determined

APPEAL  - Court of Appeal - Power of to give appropriate relief on hearing of an appeal

APPEAL - Decision of a lower court - Respondent seeking to set aside -  Method to adopt

APPEAL - Findings of fact or evaluation of evidence of trial court Attitude of appellate court thereto

APPEAL - Merger of appeal against interlocutory ruling/decision with the appeal against the final judgment - Requirement of leave therefor

COURT - Case file - Need for court to have recourse to

COURT - Court of Appeal - Power of to give appropriate relief on hearing of an appeal

COURT - Evaluation of documentary evidence - Whether an exclusive preserve of trial court

COURT - Evidence which is admissible in law - Duty of court to admit and act on

COURT - Findings of fact or evaluation of evidence of trial court -

Attitude of appellate court thereto

COURT - Record of proceedings - Bindingness of

DOCUMENT - Application for a certified true copy of - Payment of legal fees - Whether a part of the conditions to make the document so certified a certified true copy

DOCUMENT - Certified true copy of a document - Certificate written at the foot thereon - What it should contain - Section 111(1) of the Evidence Act

DOCUMENT - Presumption - Certified true copy of document purportedly certified by an officer duly authorised thereto Presumption of genuineness of

DOCUMENT - Public documents - Mode of tendency in court

ESTOPPEL - Issue estoppel - Applicability of - Issues for consideration therefor

ESTOPPEL - Issue estoppel - Essence of

EVIDENCE - Admissibility - Photocopy of a copy - When admissible section 112 Evidence Act

EVIDENCE - Admissibility - Photocopy of a document - Inadmissibility of

EVIDENCE - Admissibility - Public document - How administered

EVIDENCE - Admissibility and weight - Distinction between

EVIDENCE - Admissibility of a document - What determines

EVIDENCE - Admissibility of documents - Conditions therefor

EVIDENCE - Affidavit - Exhibit attached thereto - When can be objected to

EVIDENCE - Certified true copy of a document - Certificate written at the foot thereon - What it should contain - Section 111(1) of the Evidence Act

EVIDENCE - Cross-examination - A witness called by the adverse party -  Failure of a party to cross-examine - Effect

EVIDENCE - Document  -  Specific provision of law under which a document is being tendered - Need for to be satisfied

EVIDENCE - Document - Application for a certified true copy of Payment of legal fees - Whether a part of the conditions to make the document so certified a certified true copy

EVIDENCE - Document - Presumption - Certified true copy of document purportedly certified by an officer duly authorised thereto Presumption of genuineness of

EVIDENCE - Documentary evidence - Due execution of document where the alleged maker denies his signature - Issue of - How resolved

EVIDENCE - Essential allegation in pleading or affidavit - Need for to be specifically traversed - Failure to - Effect thereof

EVIDENCE - Evaluation of documentary evidence - Whether an exclusive preserve of trial court

EVIDENCE - Evidence of a plaintiff with characteristic forgetfulness Effect of

EVIDENCE - Evidence procured from cross-examination - Status of

EVIDENCE - Evidence which is admissible in law - Duty of court to admit and act on

EVIDENCE - Public document - Authentication of by designated officer

-  Reasons therefor

EVIDENCE - Public documents - Mode of tendering in court

EVIDENCE - Right of parties to lead

EVIDENCE - Secondary evidence - Certification of - Need for

EVIDENCE - Sections 91(1)(a), 93, 94(1), 95, 97(1) and 112 of the Evidence Act - Net effect of with regard to tendering of public document

EVIDENCE - Witness testifying falsely on a matter within his or her personal knowledge - Effect thereof

INTERPRETATION - Interpretation of statute -  1999 Constitution, section 66(1)(h) - The words ‘set up under the Tribunals of inquiry Act, a tribunals of inquiry Law or any other law by the Federal or State Government’ therein - Whether qualify and apply to administrative panels of inquiry

JUDGMENT AND ORDERS - Dissenting judgment - Status of

JUDGMENT AND ORDERS - Merger of appeal against interlocutory ruling/decision with the appeal against the final judgment Requirement of leave therefor

JUDICIAL PRECEDENT - The cases of Lawson vs. Afani Continental

Co. Nig. Ltd. and Obadina Family and Executors of Chief J. A.

Ajao vs. Ambrose Family & Others - Distinction between JURISDICTION - Issue of - When can be raised

PLEADINGS - Essential allegation in pleading or affidavit - Need for to be specifically traversed - Failure to - Effect thereof

PRACTICE AND PROCEDURE - Admissibility of documents - Conditions therefor

PRACTICE AND PROCEDURE - Cross-examination - A witness called by the adverse party - Failure of a party to cross-examine - Effect

PRACTICE AND PROCEDURE - Documentary evidence - Due execution of document where the alleged maker denies his signature - Issue of - How resolved

PRACTICE AND PROCEDURE - Findings of fact or evaluation of evidence of trial court - Attitude of appellate court thereto

PRACTICE AND PROCEDURE - Merger of appeal against interlocutory ruling/decision with the appeal against the final judgment - Requirement of leave therefor

PRACTICE AND PROCEDURE - Preliminary objection on point of law - When can be raised

STATUTE - Evidence Act, sections 91(1)(a), 93, 94(1), 95, 97(1) and

112 -  Net effect of with regard to tendering of public document

STATUTE - Interpretation of statute - 1999 Constitution, section 66(1)(h) -  The words ‘set up under the Tribunals of inquiry Act, a tribunals of inquiry Law or any other law by the Federal or State Government’ therein - Whether qualify and apply to administrative panels of inquiry

TRIBUNAL - Tribunal of inquiry - Power to make laws for the establishment and regulation of - On whom lies

WORDS AND PHRASES - Interpretation of statute - 1999 Constitution, section 66(1)(h) - The words ‘set up under the Tribunals of inquiry Act, a tribunal of inquiry Law or any other law by the Federal or State Government’ therein - Whether qualify and apply to administrative panels of inquiry

WORDS AND PHRASES - Preliminary objection - Meaning of

Issues:

1.             Whether the majority of members of the Tribunal were correct when they rejected and refused to admit the certified true copy of the Borno State white paper on the report of the Panel of Inquiry on Revenue Generation and Utilization by the Maiduguri Metropolitan Council from April to December, 1994.

2.             Whether an election tribunal has the jurisdiction to review the decision of a panel of enquiry of the type envisaged under section 66(1)(h) of the 1999 Constitution or otherwise inquire into how it arrived at its decision and recommendations.

3.             Whether the Tribunal was correct when it held that the Panel which indicted the 1st respondent must have been set up by a law for it to qualify as a Panel of Enquiry under section 66(1)(h) of the 1999 Constitution.

4.             Whether the non-production of the report of the Panel of Inquiry which indicted the 1st respondent was fatal to the notice of preliminary objection.

5.             Whether the appellant has established that the 1st respondent was and remains disqualified to contest for and hold the office of Senator under the 1999

Constitution.

6.             Whether the Tribunal was correct in rejecting the original copy of the white paper of the Panel of Inquiry set up by the Borno State Government on Revenue Generation and Utilization by the Maiduguri Metropolitan Council from April to December, 1994 and the Borno State white paper on the said report.

7.             Whether the appellant had established that the 1st respondent was and still remains disqualified to contest for and hold the office of Senator under the 1999 Constitution.

Facts:

This is an appeal by the appellant against the majority decision of the National Assembly/Governorship and Legislative Houses Election Tribunal sitting at Maiduguri, Borno State and delivered on 28th June, 2003. The appellant and the 1st respondent herein were among the candidates who contested in the National Assembly election for the Borno North Senatorial District held on the 12th day of April, 2003. The appellant contested under the platform of the Peoples Democratic Party (PDP) while the 1st respondent herein contested under the platform of the All Nigeria Peoples Party (ANPP). At the conclusion of election the appellant herein was returned as validly elected with majority of votes cast. The 1st respondent herein felt aggrieved by the result of the election and filed a petition in the National Assembly/ Governorship and Legislative Houses Election Tribunal sitting at Maiduguri, Borno State contending that the appellant was not validly elected by the majority of votes cast and that the election was characterised with irregularities and corrupt practices. At the Tribunal, the 1st respondent was the petitioner while the appellant was the 1st respondent to the petition.

Sequel to the petition, the appellant, as the 1st respondent to the petition entered an appearance and later filed a notice of preliminary objection, pursuant to section 66(1)(h) of the Constitution of the Federal Republic of Nigeria, 1999 on the ground that the petitioner lacks the locus standi to bring and maintain the petition for being under a legal/constitutional incapacity having been indicted for fraud and embezzlement by a panel of enquiry set up by the Borno State Government on Revenue Generation and Utilization by the Maiduguri Metropolitan Council and the said indictments have been accepted by the Government of Borno State. At the conclusion of arguments on the preliminary objection, the learned Tribunal in a considered ruling delivered on the 3rd day of June, 2003 by a majority of four (4) members to one (1) member overruled the preliminary objection and dismissed it. The appellant appealed against the ruling of 3rd June, 2003. After the preliminary objection, the substantive matter went on trial. On the 28th of June, 2003 by a majority of four (4) members to one (1) the Tribunal found for the petitioner, declared her as elected by the majority of lawful votes cast at the senatorial election held on the 12th of April, 2003. Dissatisfied with the decision of the majority, the appellant appealed to the Court of Appeal. By leave of court the appeals against the interlocutory decision of the Tribunal dated 3rd June, 2003  and the final judgment dated 28th June, 2003 were consolidated. The 1 st respondent also cross-appealed. The Court of Appeal in determination of the appeal considered section 66(1)(h) of the 1999 Constitution of the Federal Republic of Nigeria which provides as follows:

“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 Tribunal 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.”