In The Court of Appeal

(Abuja Judicial Division)

On Monday, the 1st day of March, 1999

Suit No: CA/A/EPLG/4/99

Before Their Lordships

 Between

 And

MUNTAKA-COOMASSIE J.C.A. (Delivering the Leading Judgment): The appellant, in this appeal, was the, petitioner before the Local Government Council Election Tribunal Abuja herein called Election Tribunal. The appellant Mr. Samuel Etsu Lanto was a candidate on the platform of the Peoples Democratic party hereinafter referred to as PDP for the Chairmanship of Kuje Local Government whilst the first respondent was the candidate for the All Peoples Party APP for the Chairmanship election for Kuje Area Council held on the 5th December, 1998. At the close of the election and after counting the 3rd respondent, i.e. the returning officer, Kuje Area Council, returned the 1st respondent as duly elected Chairman of Kuje Area Council of the Federal Capital Territory Abuja. The 1st respondent who was declared the winner scored a total of 12,278 lawful votes against the petitioner 10,217 votes. The petitioner, now appellant, was aggrieved by the declaring of the 1st respondent as the winner. He brought an election petition challenging the said declaration of the 1st respondent before the Election Tribunal. The Resident Electoral Commissioner Federal Capital Territory and all other 14 presiding officers of the polling stations complained of were duly joined including Independent National Electoral Commission (INEC). 

The main grouse was the 1st respondent was not qualified to contest the said election as he did not pay his tax as and when due and that the election conducted in eleven polling stations were marred with corrupt practices, undue influence, falsification, intimidation, personation and other offences against the Decree which voids the election.

Other complaints are that the 1st respondent was not elected by lawful majority votes cast in that if these results obtained by manipulation and falsification of the aforementioned polling stations are subtracted from the votes cast; the appellant will have lawful majority votes cast and should be so returned. 

Finally, that the presiding officers in the aforementioned polling stations did not ensure compliance with mandatory provisions of Decree 36 of 1998 as they engaged in the utter disregard and breach of the provisions of the said Decree by their acts and/or omission, neglect, ineptitude which affected the result of the election.

The 1st respondent flatly denied all the allegations and complaints. Similarly all the respondents denied. 

At the hearing of the petition 10 witnesses were called by the appellant (as petitioner). The 1st respondent called three witnesses in support of their respective stand points taken on their pleadings, 49 exhibits were, all in all, tendered. After the addresses of both learned counsel the Election Tribunal in its judgment delivered on 26th day of January, 1998, dismissed the petition in the following terms:-

"In view of our earlier holding that the 1st respondent paid his tax when it was due we also hold that if at all there is an irregularity, it has not substantially affected the result of election. The petition in our view lacks merit. It is accordingly dismissed and we confirm the election and the return of the 1st respondent Hon. V. I. Wowo as the duly elected Chairman of Kuje Area Council."

The petitioner, now appellant, in the exercise of his right, approached this court on appeal by filing an appeal against the above judgment of the Election Tribunal. He filed seven grounds of appeal. I reproduce them hereunder without their particulars.

Ground one:  The decision of the tribunal is unwarranted. unreasonable and cannot be supported having regard to the weight of evidence. 

Ground Two: The learned trial tribunal erred in law when it held that the 1st respondent paid his tax as and when due because the evidence of PW1 is conclusive of the matter.

Ground three: The learned trial tribunal erred in law when it held that if at all there is an irregularity, it has not substantially affected the result of the election. 

Ground four: The learned tribunal erred in law when it held that the evidence of the witnesses of the petitioner did not prove any of the allegations.

Ground five: The learned tribunal erred in law when it failed to consider the issues raised joined in the pleadings and evidence led. 

Ground six: The learned tribunal erred in law as the judgment delivered did not disclose a dispassionate consideration of the issues raised nor making specific findings on them and were made wrong inferences were drawn, (sic)

Ground seven: The learned trial tribunal erred in law when it held that PW1 was an expert and his evidence conclusive (sic) on the issue of tax.

The parties properly before us in this appeal filed and exchanged briefs. The appellant, the 1st respondent and the 2nd to 17th respondents duly filed their respective briefs. The appellant. in addition, filed an appellant's reply brief on 15/2/99.

The appellant, in accordance with the practice directive of this court, formulated three issues for the determination of the appeal by this court as follows:- 

1. "Whether the trial tribunal was right, when it held that the 1st respondent paid his tax as and when due.

2. Whether the appellant have proved the allegation of personation, non-compliance and other offences against the Decree 36 of 1998 against the respondents; and

3. Whether the trial court properly evaluated the evidence and made the appropriate inferences having regards to the state of the pleadings and evidence led warranting the interference by the appellate court."

The 1st respondent identified two issues thus:-

1. Whether the appellant was able to prove that the 1st respondent did not pay his tax as when due. 

2. Having not appealed against the findings of fact made by the Election Tribunal to the effect that the petitioners witnesses were inconsistent, evasive, unreliable and un-sure of what they were saying, whether the complaint of the appellant on the decisions of the tribunal on allegations of personation and other offences are competent and a ground to reverse the decision of the lower-court."

The 2nd to 17th respondents chose rather to be prolific thereby formulated four issues which are not dissimilar to the issues formulated by the appellant or the 1st respondent. I think I do not need to set them out here. 

At the hearing of the appeal on 1812/99 the appellants counsel Mr. Izinyon sought to further elaborate on the issue of paying tax as and when due. He submitted that evidence ofP.W, 10 is preganant of some irregularity. It shows that the 1st respondent paid his tax as and when due. However evidence of P.Ws 10 and 6 read together will show that the 1st respondent worked for nine months. Exhibits pi shows that the 1st respondent worked for twelve months. That being the case, counsel insisted, the 1st respondent did not pay his tax from January, to March, 1997. He therefore submitted that the 1st respondent did not pay his tax as and when due for three years preceding the election as required by section 51 (b) of Decree No. 36 of 1998. He cited in support the un-reported appeal of John Sonlnukan v. Jubelo & Ors Appeal No. LGEAT/K9/1/A/97 at p22-24; and Uko Edeuko v. Ukpai Agwo Ukpai & On. also un-reponed suit No. CNPH/EP/I 09/98 delivered on 21/4/98 per Uwaifo JCA (as he then was). 

He then urged this court to hold that Exhibit pi is not Carteblache for tax not paid as and when due. I agree that Exhibit p1 should not be taken as blank-cheque to be used for tax not actually paid. However the general submissions of all the respondents on this point are that the tax is payable on every chargeable income in any part of, or the whole yearofa5sessment, and that the 1st respondent has not been assessed to pay any tax at all. I am inclined to agree substantially with the above statement of facts and law. It is manifest from the evidence at the Election Tribunal that there is no iota of credible evidence that the 1st respondent did earn any taxable income from January, 1997 to March 1997 for which he defaulted in the payment of tax as stipulated by section 51(b) of Decree No. 36 of 1998.

Since the 1st respondent agree was a civil servant therefore an employee's, tax became due for payment whenever his salary is forth coming and matured for payment. It is never done or heard to say that a civil servant pays his tax after receiving or collecting his salary. For convenience and out of respect to the relevant rules and regulations his tax be deducted before is salary is paid to him. Consistently with the above, where a civil servants tax is deducted before his salary is paid to him it will be correct to say that he or she has paid his tax as and when due. 

It is a good law and common sense that he who asserts should prove. He has the burden of proving what he claimed or asserted. There is a herculean task on the appellant in this matter to:

(a) prove that the 1st respondent earned a taxable income during the period in question i.e. January 1997 to March, 1997. 

(b) That there was a proper assessment of the tax covering that period. 

(c) The appellant must prove that notice of assessment was served on the first respondent to pay his tax and he defaulted; and 

(d) That there must be evidence that the 1st respondent failed to pay tax assessed within two months after the service of the notice of assessment. 

See Ikuomola v. Ige (1992) 4 NWLR (Pan 236) page 511/522 and 526.

Where there is no assessment of tax payable to any tax payer, whether a civil servant or not, no tax is due or payable. 

It is splitting heirs to say, as argued by the learned counsel for the appellant, that period in a year be spitted for the purpose of paying tax to be paid term by term. There is no point in insisting that Exhibit pi should be specific and state whether the 1st respondent has paid his tax for January to March 1997. There can be, therefore, no question of 1st respondent paying his tax in 1997 in arrears. In any event the witness called by the appellant to give evidence in favour of the petitioner testified to the effect that the 1st respondent paid his tax as and when due. It is evident in the testimony of PW1 called by the petitioner/appellant that Exhibits p2 and p3 covered the tax paid by the 1st respondent for the period of 1995 and 1996 and Exhibit pi is the tax clearance in favour of the 1st respondent for the year 1997. 

This witness has been re-examined by Mr Izinyon learned counsel for the appellant. He refrained from re-examining him. I therefore hold that the 1st respondent paid his tax as and when due in respect of the relevant period. I say no more on that.

On the other issues i.e. issues two and three one has to be cautious in treating same. In a given situation pleadings may be clearly and neatly stated but evidence to support same may be scanty or none. More over, the issue of finding of facts by the trial court or tribunal may not be altogether straightforward. At one breadth this court may not be willing to interfere with their findings especially when same were not perverse at another breath if it borders on evaluation of evidence whether it would be right for this court as an appeal court to evaluate the evidence itself where the trail tribunal failed or refused to do so. Knowing fully well that it is the duty of the lower tribunal or trial court to consider issues of facts. There is plethora of decided cases to the effect that appellate court will not normally set aside or interfere with the exercise of discretion of the trial court. In order not to unnecessarily prolong this judgment which is supposed to be brief in view of the time factor. I will say as stated by Belgore JSC in Odebunmi v. Abdullahi (1997) 3 NWLR (Pt. 489) 526/535 paragraph C - F

(a) "Whether the finding is not supported by any pleading or far from the claim of any party; or

(b) where there is no evidence to support the pleadings; or 

(c) where the evidence received in support of the pleading is against any statute, being either against the Evidence Act or any other statute prohibiting reception of such evidence or prescribing the procedure to receive such evidence which procedure is not followed; 

or

(d) given without jurisdiction; or

(e) where the court did not hear all the parties on the point by denying one party the opportunity to be heard. 

Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt.70) 325. Ajuwa v. Odili (1985) 2 NWLR (Pt.9) 710. Chukwueke v. Nwankwo (1985) 2 NWLR (Pt. 6) 195. Oil Field Supply Centre Ltd v. Johnson (1987) 2 NWLR (Pt. 58) 625; Kimdey v. Governor of Gongola State (1988)2 NWLR(Pt. 77) 445; Ekwunife v. Wayne (W.A.)  Ltd (1989) 5 NWLR (Pt. 122) 422."

On issue two, to be specific, the appellant pleaded corrupt practices, undue influence, falsification, intimidation, personation and other offences against the Decree 36 of 1998 in 10 polling stations. See pp.6 - 7 paragraphs 7 of the record of proceedings.

Learned counsel for the appellant contended that they have through PW2 led evidence to prove the above catalogue of criminal offences. The evidence of Austin Namdi Orogbu, PW2, started on p.37'9740 up to p.52 of the record. Some exhibits tendered through this witness were also referred to by the appellant in their brief and at the hearing. I have carefully gone through the evidence of this PW2 and the exhibits tendered on p.50 the same witness called by the appellant, as petitioner, testified that " I do not agree that our officers manipulated and falsified results. It is not true that the election was not conducted in free and fair manner." The learned Chairman of the tribunal after careful analysis of the evidence before him and after closely watching the demeanor of the witnesses had this to say 

"On the 2nd issue, it can be said that the petitioner has proved that the election was marred by corrupt practice, falsification, intimidation and other offences. With due respect we hold the view that none of the witnesses could prove any of the allegations as we do not believe their inconsistent evidence ... PW2 being a witness to the petitioner in our view has told the tribunal the truth and we do not have any reason to disbelieve him ..."

It is to be noted that allegation of criminal offence in the election petition must be proved as in other criminal proceedings. First of all, the burden is on the person alleging fraud or falsification. He must as a prosecutor in the criminal case, prove the said allegation beyond reasonable doubt. See the case of Nwobodo v. C Onoh (1984) 1 S.C.N.L.R. 1; and Omoboriowo v. Ajasin (1984) 1 S.C.N.L.R. 108. 

Obviously, where a trial court took into consideration relevant law of the land and made a finding of facts based on what is heard and seen there is no justification on us to interfere with such a finding. 

My Lords, the findings of fact by the Election Tribunal was supported by evidence as such we cannot interfere. Where the Election Tribunal took proper advantage of its having seen and heard the witnesses called by the petitioner the Court of Appeal, cannot and should not interfere with same. The findings of the Election Tribunal were sound and un-assailable I so hold. We will be wrong to hold otherwise. See Musa v. Yerima (1997) 7 NWLR (Pt.511) 27/42 per Onu JSC and  per Wali JSC. Mogaji v. Odofin (1978) 4. S.C. 91.

On the issue number three, it was the contention of the appellant that the Election Tribunal did not properly evaluate the evidcence and therefore did not make the appropriate inferences having regards to the state or the pleadings and evidence led which warranted the interference by the appellate court.

It is the argument of the learned counsel for the appellant that the Election Tribunal failed to resolve the issues in controversy based on the pleading and evidence led and the said judgment did not demonstrate a dispassionate resolution of the issues. He gave six instances of such lack of dispassionate resolution of the issues. He then neatly submitted that failure to consider the above six instances led to a miscarriage of justice as it would have resolved the matter either ways. Therefore, he further submitted, that the Election Tribunal cannot take refuge under the general use of the words that I do not believe their evidence. He refers to pt.30 line 14-16 of the record and the case of Bozin v. The State (1985) 2 NWLR (Pt. 8) G 465; (1985) NSCL 1057 at 1094. He then urged this court to allow the appeal and set aside the decision of the Election Tribunal.

I have considered the submissions of the learned counsel for the appellant in his briefs on pp.28-32 and his further submission during the hearing of this appeal and the list of authorities filed on the day of the hearing. I have similarly considered the submissions of all the respondents counsel in their respective briefs. I discovered thus;-

Except at Dnago polling station where the Exhibit p8 seems to cause a little confusion vis-a-vis accredition the evidence never supported the pleadings of the appellant at the Election Tribunal. There is no credible: evidence by the appellant cloth, as it were, the pleadings as stated on pages 4-14 of the record. There is over abundance of authority to show that where evidence in court falls short of supporting pleadings the evidence goes to no issue. The said pleadings could be regarded as abandoned. After a careful analysis of the evidence and the relevant pleading it was discovered that the petitioner/appellant was only deprived, by a human error of only two votes as demonstrated on Exhibit P6. It was accepted by the Election Tribunal and all parties that if the two votes were added to the total votes won by the appellant it would not change the result of the election. The fact that the result of the election were correct authentic appears to me rebuttable presumption. It is the duty of the appellant, which he failed to do, to call relevant and credible witnesses to rebut such presumption. Failure to so rebut would lead this court to hold that the election result was correctly pronounced and the will of the electorates in Kuje Area Council of the Federal Capital Territory Abuja was correctly declared and announced. 

It is interesting to note that after considering all the Briefs and submissions of all the counsel in this appeal this court could not entertain any doubt as to the correctioness of the findings of the Election Tribunal. The allegations palpably failed. The said lower tribunal gave reasons for its findings which were correct. I hold therefore that the Election Tribunal unquestionably evaluated the evidence before it and we have no reason to further re-evaluate same. See Okonfua & Anor. V. The State (1981) 6-7 SC page 1; Obodo v. Ogba (1987) 2 NWLR (PI. 54) p.1 at 3.)

I hold therefore that none of the provisions of the Decree No. 36 Local Government (Basic Constitutional and Transitional Provisions) Decree 1989 was violated. The appellant has failed to satisfy both the Election Tribunal and this court undercurrent dispensation that any thing has affected the result of the election or that the two votes denied him, by mistake, has prevented him from getting a majority votes in his favour for that reason the appeal must fail. I hold that nothing in the conduct of the said election marred the election. The 1st respondent was qualified to contest the election and the election in all the polling stations was in substantial compliance with the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998. The non-compliance where two votes were denied the appellant could not affect substantially the result of the election. If two votes would have changed the result of the election, certainly the election would have been vitiated and I would have voided the whole election Gbe v. Esewe & Ors.; Ezike & 9 Ors. v. Ezeugwu (1992) 4 NWLR (Pt.236) 462. 

Since I earlier on held in this judgment, that the 1st respondent, Hon. U. J. Wowo, paid his tax for the year 1997 as and when due as required by section 51(b) of Decree No. 36 of 1998 (supra), the issue of the 1st respondent not paying tax from January, 1997 to March. 1997 was not specifically pleaded and there is no evidence from the appellant that he did in fact earn a taxable income within that period. It is a situation where PW10 gave evidence on item that has not been pleaded. It is no evidence at all.

That being the case, I hold that the appellant failed woefully to prove any of the allegations and the appeal must, and is hereby dismissed with two thousand naira (N2,000.00) costs in favour of the respondents.

MUSDAPHER J.C.A.: I have had the honour to read draft of the judgment of my learned brother Coomassie JCA just delivered and I entirely agree with the conclusion arrived at But I want to comment on some of the issues presented for the determination of this appeal.

S .80 of local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 provides that: 

"No election and no return at an election under this Decree can be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Decree referred to as election petition) presented to the local Government Elections Tribunal in accordance with the provisions of this Decree, and in which the person elected or returned is joined as a party."

The qualification of a person to contest the election as regards tax and other matters are not matters within the competence of the tribunal. The issue is entirely within the jurisdiction of INEC. See Enagi v. Inuwa and others (1992) 2 LRECN 67: (1992) 3 NWLR (Pt. 231) 548. Abdullahi v. Cava (1992) 2 LRECN 142. It is my view that once INEC has screened and cleared a candidate sponsored by a political party, the tribunal has no jurisdiction to look into the matter. It appears to me that a tribunal established under the Decree has its jurisdiction hinged to undue election or undue return. It should however be remembered that undue election or undue return may be occasioned by electoral offences as contained under sections 58 - 78 election petitions.

Be that as it may, it is a fundamental principle of our legal system that a person who asserts must prove. The appellant had averred that the 1st respondent had defaulted in payment of his tax for the 1997. No evidence was led that the 1st respondent has earned any income in the first quarter or the year 1997. There is no liability to pay any tax when there is no income. The appellant has failed to adduce any evidence, that the 1st respondent was liable to pay any tax other than the tax he has undoubtedly paid and for which he was granted a three tax clearance certificate by the appropriate taxing authority. I resolve the first issue against the appellant.

On the 2nd issue, the appellant made complaints on the commission of Electoral offences by INEC officials and by agents of the 1st respondents, the allegations. It should be remembered that in an election petition where an allegation of the commission of a crime of an electoral offence is made, the petitioner had to prove those allegations beyond reasonable doubt. It was the witnesses called by the appellant before the tribunal that testified that the election was free and fair and devoid or any malpractices and irregularies. The appellant simply failed to adduce any evidence for example to prove that there was no proper accreditation of voters. The appellant's witness explained the discrepancy and most importantly, the appellant has failed to show that, the alleged non-compliance has in any way affected the result of the election. 

The pleadings as contained in the petition was at variance with the evidence led. That is why I too agree, that the tribunal had properly and adequately evaluated the evidence before reaching the inevitable conclusion that the appellant simply failed to prove his allegations on the standard required by law. 

It is for the above and fuller reasons contained in the aforesaid judgment, that I too dismiss the appeal and affirm the decision of the tribunal. I abide by the consequential order as to costs contained in the aforesaid leading judgment.

BULKACHUWA J.C.A.: I have had a preview of the leading judgment just delivered by my learned brother, Muntaka-Coomassie J.C.A. I agree with all the reasoning and conclusions reached therein.

It is trite that he who asserts must prove. As it is the contention of the appellant that the 1st respondent did not pay his tax as and when due, it is therefore up to him to adduce evidence to prove the assertion. 

The P.W.1. a witness to the appellant at the trial tribunal under cross-examination (p.36, lines 14 - 19) said the 1st respondent paid his tax as and when due for the three relevant years, 1995, 1996 and 1997 and showed that herelied on Exhibits P.1, P.2 and P.3. The trial tribunal rightly upheld that evidence when it found at page 129 of the records that "the evidence of P.W.I is conclusive on this matter

The P.W.1 had also under cross-examination at page 36 lines 25 - 26 of the records said "I relied on Exhibits P1 - 3 for clearing 1st respondent." INEC is the Electoral body charged with the responsibility of clearing nominated candidates to be eligible to contest in an election. They have their guidelines, one of which is that a candidate must have paid his tax for the relevant previous three years as and when due. And it is only when they are satisfied that a candidate has complied with all their conditions that he is issued with a clearance certificate making him eligible to contest. Where they are so satisfied, it is not open to an opponent to challenge his eligibility. Kolawole JCA in Ikuomola v. Ige & Ors. (1992) 4 NWLR (Pt.236) 511, at page 523 has said it all when he held,

"In other words, if the National Electoral Commission is satisfied at the stage of screening before a candidate is cleared competent to contest an election, that such candidate has paid the requisite tax for the prescribed period, a petition seeking the nullification of such candidate's election on the ground that he did not pay his tax as and when due is incompetent."'

For these and the more elaborate reasons in the lead judgment, I am of the view that this appeal lack merit and I too dismiss it and abide by all the consequential orders and orders as to costs.

Appeal dismissed.

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