REV. WILSON SABIYA V. ALHAJI BAMANGA TUKUR & ORS.

REV. WILSON SABIYA V. ALHAJI BAMANGA TUKUR & ORS.

final

 

 CITATIONS:

1.(1983)NSCC 559

 

In The Supreme Court of Nigeria

On Monday, the 14th day of November, 1983

Suit No: SC.112/1983

 

Before Their Lordships

AYO GABRIEL IRIKEFE                                     -Justice of the Supreme Court

MOHAMMED BELLO                                       -Justice of the Supreme Court

ANDREWS OTUTU OBASEKI                         -Justice of the Supreme Court

KAYODE ESO                                                      – Justice of the Supreme Court

ANTHONY NNAEMEZIE ANIAGOLU          -Justice of the Supreme Court

AUGUSTINE NNAMANI                                 -Justice of the Supreme Court

MUHAMMADU LAWAL UWAIS                  -Justice of the Supreme Court

                 

 

 Between

               

REV. WILSON SABIYA                                                     Appellant      

And                                                       

ALHAJI BAMANGA TUKUR & ORS.                            Respondents

                              

COUNSEL:

   Dr. Olu Onagoruwa with him I. Thomas, B. Mustapha and J. Oluton (Miss)             For the Appellant

   Mr. G. Brown Peterside S.A.N. with him M Aminu and A. Abba                                  For the Respondents

 

JUDGEMENT:

IRIKEFE, J.S.C.: (Delivering the Leading Judgment): If ever an appeal was lacking in merit, this was it.

The petitioner, now appellant, filed this petition to challenge the return of the 1st respondent herein. The petition was based on a catalogue of electoral malpractices, which, in the argument of his counsel, should lead to a nullification of the election. In the same breath, the petitioner sought to be elected on the same evidence. This is clearly an impossible feat. Having said this, how did the petitioner prove his averments? Most of the witnesses called by him had no direct testimony to offer and the only one who produced documentary proof was the 3rd respondent, the returning officer, himself an official of the Federal Electoral Commission. This was the only witness who produced evidence upon which the return in this election was made. Without the evidence of this witness, the position in this case would be that no return had been made till today. In my view, to prove falsification, it is basic that there should be in existence at least two results one of which could be stigmatised as genuine and the other false. The weakness of this case lies in the fact that no other conflicting documentary evidence was offered.

It was therefore no surprise that the petition tribunal, rightly in my view, stated unequivocally that the evidence produced in proof of this petition was inadequate and dismissed it.

The Federal Court of Appeal was also right in dismissing the appeal, thus affirming the decision of the election tribunal. Nothing that was argued before us has persuaded me to hold a view different from that held by the two lower courts. We saw no merit in this appeal and accordingly did not call upon Mr. Brown- Peterside for the respondents.

Accordingly this appeal fails and it is dismissed. The decision of the Gongola State High Court in this matter dated 12/9/83 which was affirmed by the Federal Court of Appeal is hereby re- affirmed. N300 costs are awarded to each respondent.

 

 

BELLO, J.S.C.: I agree the appeal has no merits whatsoever. The principal witness for the petitioner was the returning officer for the State and he produced the results of the poll in the 17 local governments in the State upon which he declared the result of the poll by returning the 1st respondent as duly elected. This evidence coming from the witness for the petitioner, particularly when there was no other tangible evidence to the contrary, the trial court had no alternative other than to dismiss the petition.

There is no evidence whatever proving falsifications of results, illegal polling booths, fake ballot boxes and unlawful ballot papers as alleged in the petition.

The Federal Court of Appeal acted rightly, in my view, to have dismissed the petition.

Accordingly, the appeal is dismissed. I affirm the decision of the Federal Court of Appeal. I agree with the order as to costs made by Irikefe, J.S.C.

 

 

OBASEKI, J.S.C.: This is an appeal against the decision of the Federal Court of Appeal sitting at Jos dismissing the appeal of the petitioner against the dismissal by the Gongola State High Court election panel of his election petition.

The main prayer in his petition is that the declaration that the 1st respondent was duly elected and returned be set aside and that he be declared winner and duly elected Governor of Gongola State. This prayer required him to show that he had a majority of votes. His star witness was the 3rd respondent whom he tendered as his p.w.8. This witness produced all the returns from the various local government areas upon which he based his declaration of the 1st respondent as duly elected by a majority of lawful votes. There is no evidence impugning the credibility of this witness or establishing the falsity of the various returns (30 EP series of exhibits) of the 17 local government areas and I find myself in respectful agreement with the Federal Court of Appeal when that court observed "It cannot be said that as it was contended, that (sic) the various exhibits on their face convey falsehood and criminality. None of these exhibits bear the stamp of falsehood and criminality. It is evidence that is required to prove that they are false. And no such evidence was forth-coming in this case."

Cases are not won easily by the testimony of hostile witnesses. Certainly p.w.8 was not a useful and helpful witness for the appellant. It was he who declared the 1st respondent winner of the election and the duly elected governor and maintained the correctness of his declaration in court. The other witnesses called by the appellant only testified as to matters tending to prove that the election was not conducted in compliance with the Electoral Act 1982. Their evidence did not establish any thing tending to show that the appellant had a majority of votes.

I can therefore see no merit in this appeal. The appeal fails and I hereby dismiss it with costs to each respondent assessed at N300.00. The decision of the Federal Court of Appeal is hereby affirmed. The decision of Gongola State High Court is also hereby affirmed.

 

 

ESO, J.S.C.: There is no merit whatsoever in this appeal. The appellant seeks as his main prayer that he was the proper person to have been declared elected as Governor of Gongola State having scored the majority of the lawful votes. No evidence has been addressed upon which such finding could be made by any stretch of imagination. The most cogent evidence supplied by the appellant is the evidence of an electoral officer who explained, though to the chagrin of the appellant, how FEDECO arrived at their figures upon which the returning officer based the election of the first respondent.

The appeal is dismissed with costs as stated in the judgment of Irikefe, J.S.C. presiding.

 

 

ANIAGOLU, J.S.C.: I agree that there is no merit whatever in this appeal. As Dr. Onagoruwa has readily conceded, the appellant cannot expect to establish his case. The appellant did not tender the version of the results which he contends is the correct version and the results tendered by P.W.8 – Umaru Aliyu – whom he called as a witness are the ones he has turned round to castigate as not complying with the Electoral Act. In spite of his not tendering a different set of results; in spite of his calling PW.8 as his witness, and therefore relying on the results he has tendered, he has asked us, in his prayer, not for a nullification of the election for a fresh one, but for a declaration that the 1st respondent was not duly elected and that he, the petitioner, was duly elected.

As rightly commented by the election tribunal, the case of the petitioner was undoubtedly ''vague''. Before us here, Dr. Onagoruwa's explanations of the case of the petitioner have made the case even more vague – a woolly mixed bag of incomprehensible assertions. The case of the petitioner was not advanced any further by Dr. Onagoruwa's argument on exhibits 4 and 11 dealing with Verre Constituency.

This appeal richly deserves to be dismissed and is hereby dismissed with costs as contained in the judgment of Presiding Justice, Irikefe, J.S.C. The judgment of the Federal Court of Appeal is hereby affirmed.

 

 

NNAMANI, J.S.C.: Having heard the argument of learned counsel to the appellant at length, and having read all the papers filed in this appeal as well as the record of proceedings, I am also satisfied that there is no merit whatsoever in this appeal. In the trial election court, the petitioner led no evidence to support the very serious allegations he made against the respondents. Indeed he chose to call as his witness the returning officer, 3rd respondents, whose evidence was to the effect that the election was conducted in substantial compliance with Part II of the Electoral Act, 1982. Besides, as against documents i.e. returns which the returning officer tendered (i.e. the official documents from the Federal Electoral Commission) and which were accepted as exhibits, the petitioner tendered no document (such as result sheets from party agents) which could remotely challenge the authenticity of the exhibits earlier referred to. I am not surprised therefore that at the end of the petitioner's case the election court in Gongola State held that no case had been made out for the respondents to answer. I would dismiss this appeal and it is hereby dismissed. I affirm the judgment of the Federal Court of Appeal dated 30th September, 1983. The order for costs is as contained in the judgment of Irikefe, J.S.C. presiding Justice.

 

 

UWAIS, J.S.C.: I agree that this appeal is devoid of merit and that it should be dismissed. The appellant's case before the trial court was vague because documents were tendered as exhibits merely and no evidence was given to falsify them. The appellant's prayer was that the election of the 1st respondent should be declared void and that he should be declared duly elected. The evidence which he adduced did not support the prayer. In my opinion therefore the trial court was right in dismissing the petition on a submission of no case to answer at the close of the petitioner's case. The Federal Court of Appeal was also right in dismissing the appellant's appeal against the judgment of the trial court. I myself see no reason to interfere with the decision of the Federal Court of Appeal. Accordingly, I too will dismiss the appeal and it is hereby dismissed with N300.00 costs in favour of each of the respondents.

Appeal dismissed.