AKPOTI & ANOR v. INEC & ORS
(2020)LCN/14232(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, May 01, 2020
CA/A/EPT/264/2020
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Haruna Simon Tsammani Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
1. NATASHA HADIZA AKPOTI 2. SOCIAL DEMOCRATIC PARTY APPELANT(S)
And
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 2. ALL PROGRESSIVE CONGRESS 3. YAHAYA BELLO 4. EDWARD ONOJA RESPONDENT(S)
RATIO
EVALUATION OF DOCUMENTARY EVIDENCE
In evaluating evidence, a court considers:-
(a) Whether the evidence is admissible;
(b) Whether it is relevant;
(c) Whether it is credible;
(d) Whether it is conclusive; and
(e) Whether it is more probable than that given by the other party.
See MOGAJI VS. ODOFIN (1978) 4 SC 91 @ 94 – 95. The trial Tribunal did not attach any weight to any document in its ruling. PER IDRIS, J.C.A
WHETHER OR NOT AN ISSUE RAISED FROM AN INCOMPETENT GROUND OF APPEAL ARGUED WITH A COMPETENT GROUND IS LIABLE TO BE STRUCK OUT
The law is also settled that where an incompetent ground is argued with a competent ground, the issues distilled thereupon are liable to be struck out. See HON. OSSY T. CHINWUBA VS. JOSEPH ISIAGU & ORS (2009) LPELR – 3976 (CA). PER IDRIS, J.C.A.
WHETHER OR NOT GROUNDS OF APPEAL MUST RISE FROM THE JUDGEMENT OR DECISION OF THE COURT APPEALED AGAINST
It is now settled law that grounds of appeal must arise or flow from or tied to the judgment or decision of the court appealed against. In fact, a ground of appeal need to be against the ratio decidendi of a decision and not against obiter dictum or any remarks by the judge, except where the obiter or remark is clearly linked with the ratio as to be deemed to have radically influenced the ratio. See ENEH VS. OZOR & ANOR (2016) LPELR – 40830 (SC) P. 11. PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By a Petition dated 7th December, 2019 and filed on the 8th of December, 2019, the Appellants as Petitioners at the Kogi State Governorship election tribunal filed a Petition against the Respondents, as 1st, 2nd, 3rd and 4th Respondents respectively and sought for the following reliefs against the Respondents jointly and severally:
a) A DECLARATION OF THIS HONOURABLE TRIBUNAL that the Kogi State Governorship election, held on the 16th November, 2019 was marred by substantial non-compliance with the provisions of Electoral Act, 2010 (As Amended).
IN THE ALTERNATIVE TO THE ABOVE
a) A DECLARATION OF THIS HONOURABLE TRIBUNAL that the Kogi State Governorship election, held on 16th November, 2019 was marred by substantial irregularities/Corrupt Practice.
b) A DECLARATION OF THIS HONOURABLE TRIBUNAL that in view of paragraphs 56(A) above, the Kogi State Governorship election, held on 16th November, 2019 is a nullity.
c) A DECLARATION OF THIS HONOURABLE TRIBUNAL that by virtue of the combined provision of Section 182(1)(j) of the 1999 Constitution of the Federal Republic of Nigeria,
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the 3rd and 4th Respondent were disqualified to contest as Governorship and Deputy Governorship candidates of the All Progressive Congress (APC), respectively, in the Kogi state Governorship election, held on 16th November, 2019.
d) A DECLARATION OF THIS HONOURABLE TRIBUNAL that the 3rd and 4th Respondents were not qualified to contest as Governorship and Deputy Governorship candidates of the All Progressive Congress (APC), respectively, in the Kogi State Governorship election, held on 16th November, 2019.
e) A DECLARATION OF THIS HONOURABLE TRIBUNAL that Certificate of Return issued by the 1st Respondent to the 3rd Respondent, as the winner of the Kogi State Governorship election held on 16th November, 2019 is unlawful, null and void ab initio.
f) AN ORDER OF THIS HONOURABLE COURT directing the 3rd Respondent to vacate the seat of Governor of Kogi State forthwith.
g) AN ORDER OF THIS HONOURABLE TRIBUNAL directing the 1st Respondent to conduct a fresh Governorship election in Kogi State.
h) SUCH FURTHER OR OTHER ORDER(S) as this Honourable Court Tribunal may deem fit to make in the circumstance of this petition.
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On the other hand, the 1st Respondent as at the tribunal Reply/Notice of Preliminary Objection dated and filed on the 23rd December, 2019. The 2nd Respondent also filed a Reply to the Petition/Notice of Preliminary Objection dated 27th December, 2019. The 3rd and 4th Respondent also filed a Reply to the Petition/Preliminary Objection dated 5th January 2020.
On the other hand, the Petitioner filed a reply to the 1st – 4th Respondents Reply/Preliminary Objection to the Petition dated 11th January, 2020, respectively.
Before going into the appeal, here is a summary of the facts involved in this Appeal:
The Appellant as Petitioner filed a petition giving rise to this appeal against the Respondents, claiming that she was a candidate sponsored by the 2nd Respondent to Contest election for the Governor of Kogi State, held on the 16th November, 2019.
The Appellants also claims that the 2nd Respondent also sponsored the 3rd Respondent as its Governorship candidate and the 4th Respondent as its Deputy Governorship candidate at the Kogi Governorship election conducted on the 16th day of November, 2019 by the 1st Respondent.
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The Appellant claims that she has the right to contest in the Kogi state Governorship election held on the 16th November, 2019 by the 1st Respondent which was marred by various acts of unprecedented and unimaginable violence, electoral malpractice and non-compliance with the electoral Act 2010.
The Appellants’ counsel claims that on the 16th of November, 2019 the 1st Respondent conducted subject matter, Governorship election for Kogi State, which comprises of 21 Local Government Areas 239 wards and 2568 polling units. Consequent upon the foregoing, the Appellant claims that the 1st proceeded to declare the 3rd Respondent herein as the winner of the said Kogi State Governorship election held on 16th Day of November, 2019 and returned him as elected and the 4th Respondent as Deputy Governor.
The Appellants being aggrieved by the declaration of the results made by the 1st Respondent and the return of the 3rd and 4th Respondent as elected, challenged the said results on the grounds that the election was marred by substantial non-compliance with the provision of the electoral Act, 2010 (as Amended) and the electoral guideline, the election was invalid by reason of
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corrupt practices, the 3rd Respondent was not qualified to contest the election, the 3rd Respondent submitted to the 1st Respondent, affidavit containing false information of a fundamental nature in aid of his qualification for the Kogi State Governorship election held on 16th day of November, 2019 and that the 4th Respondent submitted to the 1st respondent, affidavit containing false information of a fundamental nature in aid of his qualification for the Kogi State Governorship election, held on the 16th day of November, 2019.
The Petition is still ongoing and the Petitioners have before this Interlocutory Appeal, called fourteen witnesses identified on the record as PW1 – PW15.
The PW14 testified pursuant to a subpoena duces tecum et ad testificandum applied for by the Petitioners and served on the Guaranty Trust Bank Plc. The 1st Respondent through its Counsel raised an objection on the ground that no witness statement on oath was filed and he could not testify viva voce. The Court via its ruling permitted the witness to continue with his testimony but should be restricted to Paragraph 51(e) of the Petition.
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The tendering of the listed subpoenaed documents was further object to by the Respondents based on admissibility. In its ruling, the tribunal marked the said documents ‘Tendered but rejected’
This Appeal arose out of two interlocutory rulings of the tribunal delivered on the 4th April, 2020.
The rulings in the Petition No. EPT/KG/GOV/07/2019 were both delivered by the Kogi State Governorship Election Petition Tribunal, coram: Honourable Justice Gumna Kashim Kaigama (Chairman), Honourable Justice Ohimai Ovbiagele and Hon. Justice Baraka I.N. Wali delivered on the 4th April, 2020.
Dissatisfied with the said rulings of the tribunal, the Appellants filed a Notice of Appeal, filed on 16th day of April, 2020 consisting of Eight (8) grounds.
The Appellants and the Respondents as parties in the appeal before this Court filed and exchanged their respective briefs of argument.
The Appellants’ filed their brief of argument on the 16th April, 2020 and settled by A. U. S. Oguajamma Esq. Two issues for determination was raised:
1. Whether the lower Tribunal was wrong when it proceeded to hear argument and delivered Ruling on the Respondents’
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objections to the testimony of subpoenaed PW14 from Guaranty Trust Bank, in absolute violation of its earlier ruling on pre-hearing session and order made therein; dated 20th February, 2020. (Distilled from Grounds 1, 2 and 8 of the Notice of appeal.)
2. Whether the lower Tribunal was wrong when it held that evidence of PW14 shall be limited to circumstances of disengagement of the 4th Respondent from Guaranty Trust Bank Plc; and in the course of admissibility of documents sought to be tendered through PW14, their lordships went beyond the test of relevance, evaluated the documents and held that they are not related to or connected with the circumstance of disengagement of the 4th Respondent and declined to admit the documents in evidence. (Distilled from Grounds 3, 4, 6, 7 of the Notice of Appeal).
On issue one, the Appellants’ counsel argued that the lower Tribunal held during the pre-hearing session that all objections shall be noted at the trial but argument and/or submissions thereon shall be reserved till stage of final address. However, the trial justices took argument and delivered ruling on the Respondents objections in defiance of the
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order. It was then argued that Paragraph 18(11) of the First Schedule to the Electoral Act 2010 (as amended) provides that where a Respondent fails to obey pre-hearing order, the lower Tribunal should enter judgment against the Respondent.
It was submitted that the decision made in the course of pre-hearing session by the trial Tribunal is a pre-hearing order as contemplated under Paragraph 18 (11) of the First Schedule to the Electoral Act 2010 (as amended). Reference was made to NGIGE VS. OBI (2012) 1 NWLR PART 1280.
It was further submitted that the proper course opened to the lower Tribunal was to discountenance the Respondents’ submissions objecting to the testimony of PW14 and to the admissibility of all the documents produced by the witness; and enter final judgment against the Respondents as the word “shall” was used in the Paragraph 18 (11) of the First Schedule to the Electoral Act 2010 (as amended). Reliance was placed on UGWU VS. ARARUME (2007) 12 NWLR PART 1048 PAGE 365.
It was also argued that rules of Courts are made to be obeyed. The case of ASIKA & ORS VS. ATUANYA (2013) LPELR – 20895 (SC) was cited
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in support. This Court was urged to observe that the pre-hearing order made with the agreement of parties on 20th February, 2020 by the tribunal and resolve this issue in favour of the Appellants. Also, the Appellants counsel stated that by virtue of Section 16 of the Court of Appeal Act, this Court has the power to make all orders which the lower Tribunal ought to have made in any given circumstance. It was argued that the Respondents failed to obey the Pre-hearing order of the lower Tribunal mandating that all objections shall be noted during the trial but argument and submissions therein shall be reserved to the stage of final address and by this, final judgment ought to be entered against the Respondents or alternatively, this Court should set aside the ruling of the lower tribunal as being perverse.
On issue two, it was argued that the trial Judge had rejected the bio data form, sworn affidavit, curriculum vitae and other accompanying documents submitted to Guaranty trust Bank by the 4th Respondent which were produced by PW14 in compliance with Subpoena duces tecum and subpoena ad tesificadum, holding that the documents were inadmissible.
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It was submitted that the petitioners have the right to adduce evidence of all facts in issue and evidence of facts relevant to the facts in issue as raised in the petition based on Section 7 and 9 of the Evidence Act 2011.
It was also submitted that the tribunal erred when it held that the evidence of PW14 should be limited to circumstances of disengagement of the 4th Respondent from Guaranty Trust Bank. It was also stated that the petitioners were entitled to lead the subpoenaed witness to testify to all relevant facts that prove any of the averments in the Petition. Attention was drawn to the Subpoena duces tecum et ad testificandum issued by the tribunal was for the witness to give oral evidence concerning the employment.
It was then submitted that it is a judicial summersault for the tribunal to compel PW14 to appear before it to give oral evidence concerning the employment of Mr. Onoja with Guaranty Trust Bank and to produce documents relating to the employment of Mr. Onoja with Guaranty trust bank and the Court was wrong to reject all the documents tendered by PW14. Reference was made to OMIDIRAN VS. ETTEH (2011) 2 NWLR PART 1232 @ 501 – 502.
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The Appellants’ counsel have argued that the question that must be answered is that whether the documents tendered and rejected by the lower Tribunal relate to facts pleaded by the petitioners? It was stated that, facts making the documents which the tribunal rejected were pleaded in paragraph 51 A – L of the petition.
It was stated that it is trite law that a party is only allowed to plead facts relevant to his case and not allowed to plead evidence that will be used to proof the facts. It was then argued by Appellants’ counsel that the said documents were relevant to all the issues raised in the petition.
It was also stated by the Appellants’ counsel that the claims sought by them at the tribunal were declaratory in nature, and it is trite law that the party seeking a declaratory relief must prove his claim notwithstanding, the admission of the opposing party. The case of EDWARD NKULEGU OKEREKE VS. NWEZE DAVID UMAHI & ORS (2016) 11 NWLR PART 1524 PAGE 438 AT 489 was cited in support.
It was submitted that since it was pleaded that the 4th Respondent was dismissed by Guaranty Trust Bank Plc, the Appellants
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bear the onus to prove the employment contract and eventual dismissal of the 4th Respondent, notwithstanding any admission from the Respondents. Thus, this account for why PW14 was subpoenaed to testify and to tender documents in prove of same.
The Appellants’ counsel argued that it is not the duty of the Court/Tribunal to sort out and relate the documentary evidence tendered by the Petitioners through PW14 to the petition. Reliance was placed on APGA VS. AL-MAKURA (2016) ALL FWLR PART 826.
This Court was urged to hold that the Tribunal erred when it was held that the evidence of PW14 should be limited to circumstances of disengagement of the 4th Respondent from Guaranty Trust Bank Plc and reject all the documents which were the Bio-data form, Curriculum Vitae, Secondary School Certificate and University of Jos Testimonial, NYSC certificate and Statutory Declaration of Age produced by PW14 in compliance with subpoena duces tecum and subpoena ad tesificandum issued by the tribunal.
In the 1st Respondent’s brief of argument as settled by its counsel Chikezie Ekeocha Esq. and dated and filed on the 24th April, 2020. In the said 1st
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Respondent’s Brief of Argument, the 1st Respondent Counsel argued its Notice of Preliminary Objection.
The 1st Respondent filed a Notice of Preliminary Objection dated and filed on the 24th April, 2020. The said Notice of Preliminary Objection sought the following reliefs:
1) AN ORDER of this Honourable Court striking out Ground 2 contained in the Notice of Appeal filed on the 16/4/2020 in Appeal No: CA/A/EPT/264/2020 BETWEEN NATASHA HADIZA AKPOTI & ANOTHER V INDEPENDENT NATIONAL ELECTORAL COMMISSION & 3 OTHERS, for being in competent.
2) AN ORDER of this Honourable Court striking out issue 1 as distilled in Paragraph 2.1 of the Appellants Brief of Argument and argued in Paragraphs 4.0 – 4.17 of the Appellants brief of Argument filed on the 16/4/2020 in Appeal No: CA/A/EPT/264/2020 BETWEEN NATASHA HADIZA AKPOTI & ANOTHER V INDEPENDENT NATIONAL ELECTORAL COMMISSION & 3 ORS for being competent.
3) AND for such further order or other orders as this Honourable Court may deem fit to make in the circumstance.
The 1st Respondent’s Counsel argued that the said Preliminary Objection is challenging the competence
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of Ground 2 of the Notice of Appeal filed on the 16th April, 2020 in this instant appeal and Issue 1 as distilled therefrom in Paragraph 2.1 of the Appellants Brief and argued in paragraphs 4.0 – 4.17 at pages 7-13 of the Appellants brief of argument.
The 1st Respondent’s Counsel reproduced Ground 2 of the Notice of Appeal and argued that the purported decision of the trial Tribunal did not emanate from two rulings of the tribunal delivered on the 4th April, 2020.
The 1st Respondent’s Counsel also argued that it is trite that a ground of Appeal must challenge the validity of the ratio of the decision and subject of appeal or the Court’s decision on a point. The Appellants Counsel cited the case of KANO TEXT. PLC VS. GH (NIG) (2002) 2 NWLR (PT. 751) 420 AT 448, PARAS. H.
The 1st Respondent’s Counsel argued that, an Appellant who wishes to raise a fresh issue on appeal, must do so with the leave of the Appellate Court which he failed to do before the said Ground 2 was raised in the Notice of Appeal. The Appellants’ Counsel further urged this Court to strike out the said Ground 2 for being incompetent.
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The 1st Respondent’s Counsel argued that, it is also the contention of the 1st Respondent that the issue one formulated in the Appellants Brief of Argument is equally incompetent and liable to be struck out, same having being distilled from an incompetent ground of Appeal. The Appellants’ Counsel cited the case of ABDULLAHI VS. THE STATE (2013) 118 AT 1129, PARAS E – F.
In conclusion, the 1st Respondent’s Counsel urged this Court to strike out the Ground 2 of Notice of Appeal and Issue One of the Appellants Brief of Argument be struck out for being incompetent.
In the 1st Respondent’s Brief of Argument, the 1st Respondent raised a sole issue for determination as follows:
Whether the Kogi State Governorship Election Petition Tribunal was right in its two rulings delivered in the course of its proceedings held on 4th April, 2020 limiting the evidence of the appellants to the specific facts pleaded in Paragraph 51(e) of the petition and rejecting the documents tendered vide PW14, having regard to the facts and circumstances of the petition before it?
The 1st Respondent’s Counsel argued that the Appellants limited
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their pleaded facts in the petition to the issue that the 4th Respondent was dismissed and did not resign from the Guarantee Trust Bank PLC or Access Bank PLC as stated in form CF001 and they averred that they will lead evidence to prove under what circumstance the 4th Respondent exited the bank industry.
The 1st Respondent’s Counsel argued that the Respondents denied the said averment of the Appellants by which denial issues were joined on the fact as to the circumstance under which the 4th Respondent exited the banking industry. The 1st Respondent’s Counsel further argued that the burden of proof was cast on the Appellants to only prove the specific facts which they had pleaded and parties are bound by their pleading. On this point, he cited the case of IKEANYI VS. ACB LTD (1997) 2 NWLR (PT. 489) 509 AT 523 PARAS F – G.
The 1st Respondent’s Counsel argued that realizing the burden placed upon them by law in an attempt to lead evidence in respect of the allegation of how the 4th Respondent left the banking industry, the Appellants caused a subpoena Duces Tecum Et Ad Testificandum to be issued and served on the Guaranty Trust
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Bank Plc but the Appellants proceeded to list in the subpoena, certain documents which were strange to the facts pleaded in the petition, to be produced by the said Guaranty Trust Bank.
The 1st Respondent’s Counsel also argued that it is settled that parties before a Tribunal or Court are bound by their pleadings and at all times, the evidence must be directed and confined to the proof or disproof of the issues as settled by the parties in their pleadings. On this Point the 1st Respondent Counsel cited the case of IKEANYI VS. ACB LTD (1997) 2 NWLR (PT. 489) 509 AT 523 PARAGRAPHS F – G.
The 1st Respondent’s Counsel argued that there is nowhere in the petition filed by the Appellants, that it is averred or pleaded that the 4th Respondent submitted any of those documents rejected by the Tribunal, to the said Guaranty Trust Bank Plc or where the said documents were made an issue. Counsel also argued that there was no other fact pleaded regarding Guaranty Trust Bank Plc in the Petition, except that of his purported dismissal from the service of the Bank.
The 1st Respondent’s Counsel argued and submitted that by seeking to
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place reliance on the said documents rejected by the Tribunal, the Appellants sought to set up at the trial, a case different from that contained in their petition. Counsel cited the case of BALIOL (NIG) LTD VS. NAVCON NIG. LTD (2010) 16 NWLR (PT. 1220) 619 AT 633.
The 1st Respondent’s Counsel argued that, even though the Appellants’ Counsel argues that the said documents ought to have been admitted by the Tribunal because they were documents listed in the subpoena (Exhibit P79), served on the Guaranty Trust Bank PLC. However, the said Exhibit P79 does not constitute the Appellants pleading before the Tribunal and cannot in the circumstance determine the admissibility of a document tendered before a Court or Tribunal.
The 1st Respondent’s Counsel also argued that the PW14, the alleged staff of the said bank is an impostor because he has failed to tender his identification card to proof that he is a staff of the bank. Counsel further submitted that assuming without conceding that PW14 proof that he was a staff of the bank, the evidence of the Appellants must be limited to their pleadings as it relates to the bank.
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The 1st Respondent’s Counsel also argued that, the argument of the Appellant in Paragraph 4.0 – 4.4.17 is a total misconception of the law and that paragraph 6 and 7 of the Pre-hearing issued by the Tribunal cannot fetter the powers or Jurisdiction of the tribunal over proceedings before it.
The 1st Respondent’s Counsel further argued that the preliminary objection raised and ruled upon by the tribunal in its proceedings of 4th April, 2020, the subject matter of the appeal were not such that challenged the jurisdiction of the tribunal or the competence of the petition itself as the Preliminary Objection only related to scope of pleaded facts and admissibility of documents sought to be tendered by PW14 and that the Tribunal was not bound to suspend said rulings for purpose of delivering them at the stage of final Judgment in the circumstance. He also argued that the content of Paragraph 6 and 7 of the Pre-hearing report is inferior to the provision of Section 285(8) of the 1999 Constitution and cannot override the provisions of Section 285(8) of the 1999 Constitution of the Federal Republic of Nigeria.
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The 1st Respondent’s Counsel also argued that assuming but not conceding that the said objections raised by the Respondents contravened the practice procedure laid down in the said paragraphs 6 and 7 of the Pre-hearing report, it would amount to an irregularity since the Pre-hearing report by its nature is a procedural guide which the tribunal by Paragraph 18(10) of the 1st Schedule to the Electoral Act, 2010 can modify.
The 1st Respondent’s Counsel also argued that the argument in Paragraphs 4.5 – 4.6 of the Appellants brief of argument is misconceived and the case of BUHARI VS. YUSUF (2003) 4 NWLR (PT. 841) 446 relied upon by the Appellants does not apply to the facts and circumstances of this Appeal.
The 1st Respondent’s Counsel also argued that the grounds of Appeal do not contain any complain that the said rulings of the tribunal occasion any undue delay to the proceedings before it and Paragraph 18(8) of the 1st Schedule to the Electoral Act 2010 is irrelevant to the issue in controversy in this appeal.
The 1st Respondent’s Counsel also argued that the invitation of this Court by the Appellants to enter final judgment against the Respondents is a
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fresh issue that was not canvassed by the Appellants before the Tribunal.
The 1st Respondent argued that the Appellants failed to show that the documents rejected by the tribunal, were wrongfully rejected and led to a miscarriage of justice or that the said documents would have added value to their case.
In conclusion, the 1st Respondent’s Counsel argued that that the rejection of a document that fails the admissibility test as was the case before the tribunal, cannot amount to denial of fair hearing, as canvassed albeit in error by the Appellants. The 1st Respondent’s Counsel therefore urged this Court to dismiss the Appellants appeal with substantial costs against the Appellants.
The 2nd Respondent filed its brief of argument on the 24th of April, 2020 and settled by Wale Balogun Esq. and two issues for determination were distilled thus:
1. Whether the hearing and determination of the Respondents’ objections to the evidence of PW14 that are not pleaded, violated the Pre-hearing Report. (Distilled from Grounds 1, 2 and 8 of the Notice of Appeal).
- Whether the Tribunal’s decision to limit the evidence of
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PW14 to the pleaded facts with respect to “how the 4th Respondent left the banking industry” and the subsequent rejection of the unpleaded documents violated and breached the rules of admissibility of documents. (Distilled from Grounds 3, 4, 6 and 7 of the Notice of Appeal).
On issue one, the 2nd Respondent’s counsel has submitted that it is clear that the documents upon which objections shall only be noted and argument or submissions deferred are clearly stated to be documents which are already included in the Schedule per paragraph 5 of the Pre-hearing report and as a general rule of evidence, documents that are pleaded. In other words, documents that are not included in the schedule and or not pleaded are not covered by the deferment of argument or submission on objections. This is particularly important where the words of a statute or document are clear and unambiguous. Reference was placed on AKPANUDOEDEHE & ORS VS. AKPABIO & ORS (2011) LPELR – 4944.
It was submitted that it is crystal clear that the argument and ruling on the objections of the Respondents are not in violation of the Pre hearing Report rather
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their objections are also covered by the subsisting ruling of the Tribunal wherein the evidence of the witness PW24 is restricted to how the 4th Respondent left the banking industry. It was further submitted that the tribunal’s decision limiting the evidence of the PW24 to how the 4th Respondent left the banking industry.
It was further stated that the argument of the Appellants on the ground of Paragraph 18(8) of the 1st Schedule to the Electoral Act 2010 and the case OKEREKE VS. YAR’ADUA (2008) 12 NWLR PART 1100 PAGE 95 are non sequitor and are cited out of context. It was argued that the Respondent did not breach the agreement on the pre-hearing report by raising an objection outside the agreed listed documents as the objections raised by the Respondents are not the objection covered by the Pre-hearing Report. It was stated that the Respondents appropriately objected to an unpleaded documents and the Appellants argued against the Respondents’ position. This Court was urged to disregard the Appellants’ argument on this issue and urged this Court not to enter judgment against the Respondents. It was also submitted that the
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Appellants have not met the requirements under Section 16 of the Court of Appeal Act to invoke the powers of the Court.
The 2nd Respondent’s counsel then argued that, the Tribunal’s decision to take argument and ruled on the objections of the Respondents without deferring same till final written address is not in violation of the Pre-hearing report.
It was also argued that an appeal is a continuation of the case at the court below, it is indeed not an opportunity for the Appellants to make a new case. Reference was made to FCDA & ORS VS. UNIQUE FUTURE LEADERS INTERNATIONAL LTD (2014) LPELR – 23170. Thus, it was submitted by the 2nd Respondent’s counsel that the Appellants actively participated in the procedure of arguing their response, without deferring it till final address as they allegedly claim the Pre-hearing report prescribes and it will be wrong for them with respect, to now challenge the same procedure on appeal, the decision having not been in their favour.
On issue two, the 2nd Respondent’s counsel submitted that limiting the evidence of PW14 to how the 4th Respondent left the banking industry and the
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rejection of the unpleaded documents are consistent with the rules of admissibility.
It was argued by the 2nd Respondent’s counsel that the Appellants did not plead facts relating to the employment history or how the 4th Respondent joined the bank industry and it is settled law that in an election matter, facts must be mandatorily pleaded with clarity and precision in order to sustain an election petition. The case of OJUKWU VS. YAR’ADUA & ORS (2009) LPELR – 2403 was cited in support.
It was argued that the decision of the Tribunal is on sound footing, and this Court was urged to uphold same as the pleadings of the Appellants did not cover employment of the 4th Respondent from the banking industry and only how he left the banking industry.
It was further submitted that it is settled law that the general rules governing admissibility is that such document must be relevant, it must be pleaded and it must be admissible in law. Reference was made to OLUYEMI & ANOR VS. ASAOLU & ORS (2008) LPELR – 4772. Thus, the limitation of the evidence of PW14 to the pleaded fact and the rejection of documentary evidence that are
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unrelated to how the 4th Respondent left the banking industry is not against the rules and principle of admissibility, same having not been pleaded.
Also, it was finally submitted that it is too late for the Appellants to bring in the issue of the 4th Respondent’s employment as against how he left the banking industry. This Court was urged to resolve this issue in favour of the Respondents.
The 3rd and 4th Respondents filed their brief of argument on the 24th of April, 2020 and it was settled by E. O. Isiramen Esq. A preliminary objection was filed and argued in the brief wherein the 3rd and 4th Respondents have urged this Court to strike out incompetent grounds of appeal.
The 3rd and 4th Respondents’ counsel have argued that urged this Court to strike out grounds 2 and 3 of the Notice of Appeal. It was argued that the grounds are incompetent, having not arisen from the rulings of the trial Tribunal. It was also argued that issues 1 and 2 of the Appellants’ brief of argument be struck out having been distilled from the incompetent grounds 2 and 3 of the Notice of Appeal as it is trite law that any ground of appeal that did not
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arise from the ratio decidendi of the trial Court is liable to be struck out. Reference was made to ENEH VS. OZOR & ANOR (2016) LPELR – 40830 (SC) P. 11 PARAS B – E.
In respect of the main appeal, the 3rd and 4th Respondents raised two issues for determination. They are:
1. Whether the trial Tribunal judicially and judiciously exercised its discretion by not deferring the ruling on the objection whether PW14, a subpoenaed witness can testify outside the purview of pleadings for which he was subpoenaed? (Distilled from Grounds 1,2 and 8 of the Notice of Appeal).
2. Whether the trial Tribunal erred by rejecting the documents sought to be tendered by PW14 in contravention of a subsisting ruling of the tribunal? (Distilled from Grounds 3,4,6 and 7 of the Notice of Appeal.)
In respect of both issues, it was argued by the 3rd and 4th Respondents’ counsel that the objection raised by the Respondents challenging PW14 from giving evidence outside the purview of the pleadings for which he was subpoenaed is the type of interlocutory application contemplated by paragraph 27 of the 1st Schedule of the Electoral Act 2010 (as amended)
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and Order 26 of the Federal High Court (Civil Procedure) Rules 2019. It was then argued that the objection is not of the nature to be deferred till the final stage of final written address.
It was argued that the germane question to be asked is whether the Tribunal exercised its discretion judicially and judiciously in hearing and determining the objection raised by the Respondents concerning PW14? The 3rd and 4th Respondents answered the question in the affirmative. It was argued that parties are bound by their pleadings. Reliance was placed on EDWARD OKWEJIMINOR VS. G. GBAKEJI & ANOR (2008) 1 SCNJ 481.
It was then argued that assuming without conceding, the documentary evidence sought to be produced by PW14 were mentioned in the subpoena, the tribunal has the inherent powers to reverse or set aside a subpoena upon an application by parties stating cogent grounds. The case of MORRISON INDUSTRIES VS. MAKINDE (2006) ALL FWLR PART 321 PAGE 1339 was cited in support.
It was argued that the tribunal was right in holding that the PW14 was not competent to give evidence on documents and limiting his evidence to the pleadings on how the
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4th Respondent left the banking industry, particularly, Guaranty Trust Bank. It was further stated that notwithstanding, the express ruling of the Tribunal that PW14 should only give documentary and oral evidence of how the 4th Respondent left the banking industry, the Appellant proceeded to lead PW14 to give evidence outside the purview of related pleadings. The Respondents objected to the admissibility of the unconnected documents. The ground of objection is that the ruling disallowing PW14 from giving evidence not related to how the 4th Respondent left the banking industry has not been set aside. It was submitted that by the subsisting ruling of the tribunal limiting oral and documentary evidence of PW14 to how the 4th Respondent left the banking industry preclude the giving of any evidence, though it may be relevant to other grounds of the petition.
Finally, it was submitted that the Tribunal was right to have rejected the documents sought to be tendered by PW14 which are documents not admissible pursuant to the ruling of the Tribunal limiting the evidence to be given by PW14 to the manner the 4th Respondent left the banking industry.
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The Appellants also filed an Appellants reply brief of argument in response to the 1st, 3rd and 4th Respondent respectively. The said Reply Brief was settled by her Counsel Uchenna Oguajamma Esq. and filed on the 27th April, 2020 and 30th April, 2020.
In response to the 1st Respondent’s Brief of Argument, the Appellants’ Counsel argued that pleadings are mere frame work on which the petitioners would base their case at the trial. The Appellants’ Counsel cited the case of A. P. G. A. VS. AI-MAKURA (2016) ALL FWLR (PT. 826) 471 SC.
The Appellants’ Counsel also argued that the pleadings in Paragraph 51(j) of the petition adequately notified the Respondent that an earlier age certificate which was submitted as the authentic age declaration certificate of the 4th Respondent would be subject of evidence and relied upon at the trial.
The Appellants’ Counsel further argued that Paragraph 51(e) also notified the Respondents that evidence would be produced from the Guaranty Trust Bank Plc and Access Bank Plc to ascertain the circumstances of the 4th Respondent’s disengagement from the banking Industry and it is not open to
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the tribunal to read into the said Paragraph 51(e) of the petition that it was only the truth of how the 4th Respondent left the banking industry that evidence from either of the Banks could be relied upon to ascertain.
The Appellants’ Counsel also argued that the orders under the schedule to the Electoral Act, 2010 does not limit a witness to a particular paragraph of the Petition and precluding from giving witness in respect of other averments contained in the petition.
The Appellants’ Counsel also argued that the contention of the 1st Respondent that the Tribunal was right in rejecting the subject matter documents in evidence because they were not contained on the list of documents attached to the petition should be discountenance as it was not a ground for the ruling of the lower Tribunal and the 1st Respondent cannot raise it without filing a Respondent’s Notice. On this Point, counsel cited the case of NSIRIM VS. AMADI (2016) 5 NWLR 42 S.C.
The Appellants’ Counsel also argued that assuming but without conceding that the documents were not listed, it has no impact on the admissibility of the Documents in evidence.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In conclusion, the Appellants’ Counsel urged this Court to discountenance the contentions in 1st Respondent’s Brief as having been misconceived, allow this appeal and make all orders sought.
The Appellants filed their Reply Brief of Argument in response to the 3rd and 4th Respondent’s Brief of Argument on the 29th of April, 2020 and settled by A. U. S. Oguajamma Esq.
In response to the objection raised by the 3rd and 4th Respondents, the Appellants’ counsel have submitted that neither the Appellants herein nor this Court may speculate on the processes/documents which the 3rd and 4th Respondents seek to challenge in their motion on notice. Reference was made to IKENTA BEST (NIG) LIMITED VS. ATTORNEY GENERAL RIVERS STATE (2008) LPELR – 1476 (SC).
It was further argued that this Court does not have the jurisdiction to grant reliefs/prayers not sought by the 3rd Respondent as the motion was highly speculatory and the reliefs are incompetent. This Court was urged to dismiss the motion of objection.
It was also argued by the Appellants’ counsel that the notice of preliminary objection must be struck out
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because it did not comply with Order 10 Rules 1 of the Court of Appeal Rules 2016 as the three day’s notice before its hearing was not done.
Finally, it was submitted that this Court should hold that the absence of a valid Notice of Motion/Preliminary objection, renders all the 3rd and 4th Respondents contentions at paragraphs 13, 14 and 15 of their Brief of Argument.
The Appellants’ counsel has argued that it is apparent that the crux of the Appellants’ complaint is that despite the Pre-hearing order earlier made by the lower Tribunal, the Respondents argued the objections and the trial Judges failed to enter judgment against them.
Thus, the decision of the lower Tribunal that there was no breach of pre-hearing order amounted to a refusal to enter judgment against the Respondents under Paragraph 18(11)(b) of the 1st Schedule to the Electoral Act 2010.
It was also submitted by the Appellants’ counsel that the essence of a ground of appeal is to give sufficient notice of the complaints of the Appellants to the Respondents provided it is within the scope of the ratio relating to events and consequence thereof which
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transpired at the session. It was then argued that Ground 2 of the Notice of Appeal arose from the ratio of the judgment of the trial Court.
The Appellants’ counsel also argued that the crux of ground 3 of the Notice of Appeal is that, the tribunal went beyond the test of relevance in determination of admissibility of the documents produced by PW14 and pronounced on the probative value of the documents when it is declared that the documents were not in proof of how the 4th Respondent was disengaged.
This Court was urged to hold that grounds 2 and 3 of the Notice of Appeal arose from the ratio decidendi of the ruling of the Tribunal.
In response to the issues raised by the 3rd and 4th Respondents in the main appeal, the Appellants’ counsel has urged this Court to hold that having admitted that the nature of the objection was such that hearing and determination thereof, ought to have been deferred till final addresses, the 3rd and 4th Respondents misconceived all their contentions to the contrary should be discountenanced.
It was also argued by the Appellants’ counsel that the Tribunal ought not to have prevented PW14 from
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giving evidence. It was further stated by Appellants’ counsel that every discretion of a judicial officer must be exercised judicially and judiciously in accordance with the established principles of law and procedure. It was argued that based on their averments in paragraph 51(C), 51(E) and 51(J) of the petition, the PW14 ought to have been allowed to testify on facts and documents as stated in the subpoena.
In totality, this Court was urged to allow the appeal and grant all the reliefs sought by the Appellants.
In the determination of this appeal, we shall first resolve the notices of motion filed by the 1st, 3rd and 4th Respondents, before resolving, if need be, the issues raised by the substantive appeal in line with the issues submitted for determination by the Appellants herein.
RESOLUTION OF THE NOTICES OF MOTION
We have reviewed the argument of learned counsel in respect of the issues formulated by them.
We intend to resolve here at the motions on notice filed by the 1st, 3rd and 4th Respondents respectively wherein they urged this Court to strike out grounds 2 and 3 of the Notice of Appeal filed on the 16th of April,
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2020 in this appeal for being grossly incompetent, and an order striking out issues 1 and 2 and all the arguments connected thereto in so far as they are distilled from grounds 2 and 3 of the Appellants’ Notice of Appeal.
The 1st, 3rd and 4th Respondents have argued that grounds 2 and 3 of the Notice of Appeal filed on the 16th of April, 2020 are incompetent because they do not arise from the rulings of the trial Tribunal, and that issues 1 and 2 and all the arguments connected thereto in so far as they are distilled from grounds 2 and 3 of the Appellants’ Notice of Appeal are incompetent. That being fresh issues, the leave of this Court was not sought and obtained before they were raised.
The Appellants have argued that ground 2 of the Notice of Appeal and issue 1 of the Appellants’ brief arose from the decision of the lower Tribunal’s holding that there was no breach of pre-hearing order, and that the Appellants did not require leave of Court to sustain ground 2 of the Notice of Appeal and issue 1 in the brief of argument.
The Appellants have also argued that the prayers sought in the application of the 3rd and 4th
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Respondents were speculative, vague, ambiguous and imprecise, in that, parties to the Notice of Appeal were not indicated, including the appeal number and the Court where the appeal was filed or the person who filed the said Notice and grounds of appeal sought to be struck out.
Starting with the competence of the application filed by the 3rd and 4th Respondents, it is clear from the application that it is related and connected to the pending appeal. The application is correctly headed, the appeal number is clearly written, the reliefs sought were clear and legally elegant. The process is properly signed by counsel and filed in the Registry of this Court. The argument therefore that the application is speculative cannot stand. What the Appellants have done is to hang on to straws, instead of responding to the application of the 3rd and 4th Respondents on the merits.
Grounds 2 and 3 of the Notice of Appeal filed on 16th April, 2020 are reproduced hereunder as follows:
“GROUND TWO
The learned trial justices of the Hon. Tribunal with due respect, erred in law when on 4/04/2020, the tribunal failed to enter judgment against the Respondents
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who disobeyed the pre-hearing orders of the tribunal as to argument on objections during trial, in accordance with the mandatory provisions of paragraph 18(11) of the 1st Schedule to the Electoral Act 2010 (as amended).
GROUND THREE
The learned trial justices with due respect erred when in the course of admissibility of documents sought to be tendered through PW14, the Hon. Tribunal went beyond the test of relevance, and evaluated the documents and held that they did not prove the circumstance of disengagement of the 4th Respondent from the Guaranty Trust Bank and declined to admit them in evidence.”
Having read the rulings appealed against, it is clear that ground 2 was not canvased before the trial Tribunal, neither did the trial Tribunal make any pronouncement on the issue raised in this ground.
The same applies to ground 3 of the Notice of Appeal filed on 16th April, 2020. This ground complains about the trial Tribunal evaluating the documents tendered and sought to be admitted in evidence. This ground does not reflect the ruling or the proceedings of the trial Tribunal. It is clear that what the trial Tribunal did was to
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reject the documents sought to be admitted in evidence having been tendered in contravention of its ruling wherein it held that PW14 may only lead oral or documentary evidence in regards to the question as to how the 4th Respondent left the banking industry. The trial Tribunal did not evaluate the documents. In evaluating evidence, a court considers:-
(a) Whether the evidence is admissible;
(b) Whether it is relevant;
(c) Whether it is credible;
(d) Whether it is conclusive; and
(e) Whether it is more probable than that given by the other party.
See MOGAJI VS. ODOFIN (1978) 4 SC 91 @ 94 – 95. The trial Tribunal did not attach any weight to any document in its ruling.
Grounds 2 and 3 did not arise from the ratio decidendi of the rulings of the trial Tribunal. It is now settled law that grounds of appeal must arise or flow from or tied to the judgment or decision of the court appealed against. In fact, a ground of appeal need to be against the ratio decidendi of a decision and not against obiter dictum or any remarks by the judge, except where the obiter or remark is clearly linked with the ratio as to be deemed to have
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radically influenced the ratio. See ENEH VS. OZOR & ANOR (2016) LPELR – 40830 (SC) P. 11.
In the circumstances, we hold that grounds 2 and 3 of the Notice of Appeal filed on 16th April, 2020 by the Appellants herein are incompetent and they are therefore struck out.
Having perused the Appellants’ brief of argument, it is clear that issue one is distilled from grounds 1, 2 and 8, while the issue two is distilled from grounds 3, 4, 5, 6 and 7 of the Notice of Appeal filed on 16th April, 2020. The law is also settled that where an incompetent ground is argued with a competent ground, the issues distilled thereupon are liable to be struck out. See HON. OSSY T. CHINWUBA VS. JOSEPH ISIAGU & ORS (2009) LPELR – 3976 (CA).
In the circumstances, we hold that the issues formulated by the Appellants herein are clearly incompetent, and all the arguments connected thereto are therefore hereby struck out.
Having struck out the issues, there is no other issue to be considered by this Court in respect of this appeal. The appeal is therefore, hereby struck out.
No order as to cost.
JIMI OLUKAYODE BADA, J.C.A.: I agree.
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HARUNA SIMON TSAMMANI, J.C.A.: I agree.
MOHAMMED MUSTAPHA, J.C.A.: I agree
JAMES GAMBO ABUNDAGA, J.C.A.: I agree.
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Appearances:
- Olanipekun, SAN, with him, R. Egwuaba, Esq. and H. Sheriff Esq. For Appellant(s)
- S. Ekeocha, Esq., with him, K. O. Omoman, Esq. and E. Oghojafor, Esq. – For the 1st Respondent
W. Balogun, Esq., with him, V. Okundiri, Esq., Z. Garuba, Esq., O. Oloji Esq and W. A. Adeniran, Esq. – For the 2nd Respondent
E. O. Isiramen, Esq., with him, M. Adeh, Esq., E. A. Oni, Esq., A. Audu, Esq. and I. E. Ojiah, Esq. – For the 3rd and 4th Respondents.
For Respondent(s)
