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Yahaya v. Saraki

DR. OLORIEGBE IBRAHIM YAHAYA

ACTION CONGRESS OF NIGERIA (ACN)

V

DR. ABUBAKAR BUKOLA SARAKI

PEOPLES’ DEMOCRATIC PARTY (PDP)

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

COURT OF APPEAL

( ILORIN DIVISION )

TIJJANI ABDULLAHI JCA ( Presided )

IGNATIUS IGWE AGUBE JCA ( Read the Lead Judgment )

ITA GEORGE MBABA JCA

EPT/CA/IL/SEN/8/2011

WEDNESDAY, 15 DECEMBER 2011

APPEAL - Evaluation of evidence and ascription of probative value to by trial court - Proper approach thereto - Judgment of trial court -  Mandatoriness of reflecting result of such exercise - Attitude of appellate court to - When may undertake

APPEAL - Ground of Appeal - What is - Essence of - Ratio decidendi of judgment being appealed - Mandatoriness of being based on -  Vagueness of - Impropriety of - Court of Appeal Rules, 2011, Order 6, rules (2) and (3) considered

COURT - Trial and appellate courts - Duties of - Findings of trial court - Attitude of appellate court thereto

ELECTION PETITION - Civil proceedings and election petition - Burden of proof in - On whom lies - Evidence Act, sections 132 and 133(1)  considered

ELECTION PETITION - Electoral scores - Falsification of - Where alleged - Proper person to give evidence therein

EVIDENCE - Civil proceedings and election petition - Burden of proof in - On whom lies - Evidence Act, sections 132 and 133(1) considered

EVIDENCE - Counsel’s address -  Irrelevance of as substitute for evidence

EVIDENCE - Declaratory reliefs - Claimant for - Onus on to succeed on strength of own case and not rely on weakness of defence Standard therefor where evidence proffered is not challenged

EVIDENCE - Document - Party who relies on - Duty on to relate same to specific part of his case

EVIDENCE - Documentary evidence - Overriding effect of over oral evidence

EVIDENCE - He who asserts - Onus on to prove

EVIDENCE - Severance of pleadings - Principle of - Applicability of Election petition - How operates therein

EVIDENCE - Witnesses - Elusive or incompetent witnesses - Evidence of - How treated by trial court

PLEADINGS - Bindingness of on parties and court

STATUTE - Court of Appeal Rules, 2011, Order 6, rules (2) and (3) Ground of appeal - What is - Essence of - Ratio decidendi of judgment being appealed - Mandatoriness of being based on Vagueness of - Impropriety of

STATUTE - Evidence Act, sections 132 and 133(1) - Civil proceedings and election petition - Burden of proof in - On whom lies

Issues:

  1. Whether having regard to the nature of the petition and the evidence of the appellants’ ward agents, the tribunal was right when it disregarded the evidence of the appellants’ ward collation agents on the ground that they were not polling booths agents or field officers in the fields.
  2. Whether the tribunal was right in failing to set aside the final result (form EC8C) of Asa L.G.A, when it is apparent from the evidence that there was no collation or no proper collation of the results of the said L.G.
  3. Whether the scores of the 1st respondent ought not to be reduced by 686 votes when the evidence revealed that the scores of the 1st respondent was so increased during computation of results at the ward collation centre.
  4. Whether the scores of the 1st appellant ought to be increased when, from the evidence, it was apparent that the 1st appellant’s score was reduced at the collation centres.
  5. Whether the tribunal was right in holding that the documents tendered by the appellants were not supported by oral evidence or demonstrated before the tribunal.
  6. Whether the tribunal was right when they disregarded the charts annexed to the two final addresses by the appellants.
  7. Whether the tribunal was right in holding that the petitioners did not lead evidence on allegations of non-compliance with the Electoral Act and the Manual for Electoral Officers.
  8. Whether the criminal allegation in the petition can be proved separately from the civil allegations and vice versa or whether aside from the facts relating to crime, there would be sufficient facts for questioning the election.

Facts:

The Kwara State Central Senatorial District election was contested by the 1st petitioner and the 1st respondent among other candidates, aggrieved by the declaration and return of the 1st respondent as winner of the election, the petitioners filed a petition at the Governorship and Legislative Houses Election Tribunal, sitting in Kwara State. The petition was predicated on grounds that the election was invalid and irregular by reason of substantial non-compliance with electoral provisions, the 1st respondent was not duly elected by majority of lawful votes cast and falsification of results. They prayed the tribunal to declare, inter alia, that; the 1st respondent was not duly elected and order declaring the 1st petitioner as the winner of the election. The tribunal dismissed the petition. Aggrieved, the petitioners appealed to the Court of Appeal. The respondents filed a preliminary objection to the appeal.

In determination of the appeal, the Court of Appeal considered the following statutes:

Court of Appeal Rules, 2011, Order 6, rules (2) and (3): “The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellants intend to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.” By Order 6, rule 3 thereof:

“Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted save the general ground that the judgment is against the weight of evidence, and a ground of appeal or any part thereof which is not permitted under the rule may be struck out by the court of its own motion or application by the respondent.” Evidence Act, section 134:

“The burden of proof shall be discharged on the balance of probabilities in all civil proceedings.”