CONGRESS FOR PROGRESSIVE CHANGE v. INDEPENDENT NATIONAL ELECTORAL COMMISION (INEC) & 41 ORS
(2011)LCN/4785(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 6th day of September, 2011
CA/A/EPC/PRES/1/2011
RATIO
PRINCIPLES OF INTERPRETATION: WHETHER WORDS USED IN A STATUTE MUST BE ACCORDED THEIR LITERAL, GRAMMATICAL OR ORDINARY MEANING DEVOID OF ANY SENTIMENT
It should be reiterated, for the avoidance of doubt, that it is well trite doctrine that the actual words used in a statute ought to be accorded their literal, grammatical or ordinary meaning devoid of any sentiment, decoration or quibble. Invariably, a court has all obligation to give effect to such words used in a statute that appear to be plain and unambiguous. This trite doctrine is hinged on the belief that a court has no business reading into a statute words which are not used therein. See UBA Plc. v. Akparabony Comm. Bank (Nig.) Ltd. (2005) 35 WRN 98, (2005) 12 NWLR (Pt.939) 232 paragraph 8, Ogunmade v. Fadayiro (1972) 8-9 SC1, N.U.R.W. v. N.R. C. (1996) 6 NWLR (Pt. 473) 490 at 503, Buhari v. Obasanjo (2005) ALL FWLR (Pt. 273) 1 at 133-134, (2005) 13 NWLR (Pt. 941) 1 respectively. PER MOHAMMED LAWAL GARBA, J.C.A
DECLARATORY ORDER: WHETHER A CLAIMANT FOR A DECLARATORY ORDER MUST SUCCEED ON THE STRENGTH OF HIS CASE AND NOT ON THE WEAKNESS OF THE CASE OF THE DEFENDANT
A claimant for a declaratory order, they said, must succeed on the strength of his case not on the weakness of the case for the defendant – Eya & Ors. v. Qudus & Ors (2001) 15 NWLR (Pt. 717) 587 at 624. PER MOHAMMED LAWAL GARBA, J.C.A
DECLARATORY RELIEF: WHETHER THE COURT CAN MAKE DECLARATIONS OF RIGHTS EITHER ON ADMISSION OR IN DEFAULT OF DEFENCE WITHOUT HEARING THE EVIDENCE
In Maja v. Samours (2002) 7 NWLR (Pt. 765) 78 at 100-101, the Supreme Court held that- “The Court does not make declarations of rights either on admission or in default of defence without hearing evidence and being satisfied by such evidence to the plaintiff’s entitlement to such a right. The requirement of oral evidence arises from the fact that the Court has a discretion to grant or refuse a declaratory relief and its success depends entirely On the strength of the plaintiff’s own case and not on defence.” See also, Aregbesola v. Oyinlola (2011) 9 NWLR (Pt. 1253) p. 458 at 594. PER MOHAMMED LAWAL GARBA, J.C.A
JUSTICES:
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
OBANDE OGBUINYA Justice of The Court of Appeal of Nigeria
Between
CONGRESS FOR PROGRESSIVE CHANGE – Appellant(s)
AND
INDEPENDENT NATIONAL ELECTORAL COMMISION (INEC) & 41 ORS – Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A (Delivering the Leading Judgment): On 24th May, 2011, this Honourable Court based on the consent term of the parties ordered as follows:-
“1. An order that INEC shall grant the Petitioner and any other party in the Petition, their counsel, agents or experts access to the Biometric Data base created by the DDC Machines for Register of voters, used at tile Presidential Election held on 16th April 2011.
INEC shall give Notice to parties as to time, date and place for such exercise provided that the absence of a party duly notified shall not delay such exercise.
2. All order that INEC shall grant access to the Petitioner and any other part) to the petition, their counsel and their experts, to inspect and take Certified True Copy (CTC) of election materials i.e.
a. Register of voters used in all the Polling Units at Presidential Election held on 16/04/2011 throughout the Federation.
b. Electoral Forms EC8A, B, C, D & E.
c. Manual for the Election.
d. List of officials of INEC including ad hoc staff who participated in the conduct of the election.
e. Records of Ballot Papers distribution throughout the Federation.
f. Ballot Papers used in the Presidential election held on 16/04/2011.
B. Access for inspection and taking of copies of the Election materials shall be at the statutory location of such election materials i.e.
i. Custody of Resident Electoral Commissioners in various States.
ii. Custody Chairman of INEC provided all necessary official fees for such certification are paid.”
On 11/8/2011, the Petitioner pursuant to paragraphs 18(11) of the 1st Schedule to Electoral Act 2010 as Amended, Section 149(d) of the Evidence Act and under the inherent powers of this court brought application for:-
“1. An order of this Honourable Court pursuant to the Court’s inherent jurisdiction giving directions as to whether the interpretation of the words “access” and/or “inspection” as used in tire order of this Honourable Court dated the 24th day of May, 2011 in this Petition does not carry with it all interpretation of investiture of right on the Petitioner to electronically open the 1st and 2nd Respondents data base for the purpose of using the information stored therein in proof of its petition filed before this Honourable Court.
2. An order of this Honourable Court entering judgment in favour of the petitioner in Petition No. CA/A/EPT/PRES/1/2011 under Paragraph 18(11) of the 1st Schedule to the Electoral Act, 2010 as Amended, Section 149(d) of the Evidence Act and or inherent jurisdiction on the ground that the order for inspection granted by this Honourable Court on the 24th day of May, 2011 is not being complied with by the Respondents for their refusal, failure and neglect to comply with the terms of the said order attached to this application as Exhibit 5.
3. And for such further or other orders as this Honourable Tribunal may deem fit to make in the circumstances. ”
The grounds upon which the petitioner’s application is based are as follows:-
“1. That the petitioner was one of the registered political parties that contested the Presidential Election held on the 16th day of April,2011 and had in consequence thereof demanded for election materials from the 1st Respondent vide series of letters written to that effect before, during and at the conclusion of the election.
2. That 1st and 2nd Respondents denied the petitioner s request by failing to make copies of the requested election materials available to the Applicant and the Applicant was as a result forced to file an application dated the 15th May, 2011 for an order directing the 1st and 2nd Respondents to produce for the inspection of the Applicants and permitting it to take copies of the election materials used in the conduct of the election.
3. That this Honourable Court had on the 24th day of May 2011 granted an order pursuant to the application referred to in paragraph 2 above in the following terms:
4. That the Respondents have now jointly frustrated the execution of the order and contended, among others, that they would not allow access to the database which they claimed is not necessary for tile proof of the petitioner’s case.
5. That even though the order for inspection was granted early enough in the proceeding, the Applicant’s efforts to take advantage of the order was met with series of frustrations evidenced by exhibits 1 -14.”
The Petitioner’s application was supported by a 34 paragraph affidavit deposed to by Yusuf Salihu, the Applicant’s Organizing Secretary. The Affidavit has fourteen (14) Exhibits attached to it. The Petitioner also filed a 2 paragraph further and better affidavit with two exhibits on 25/8/2011.
The Respondents variously reacted to the Petitioner’s application and filed Counter-affidavits in opposition. The 1st 2nd 6th – 42nd Respondents on 15th August 2011 filed a 26 paragraph Counter-affidavit deposed to by Ebuka Nwaeze a counsel in the chambers of Awomolo & Associates. On the same 15/08/2011, the 3rd and 4th Respondents also filed a counter affidavit of 46 paragraphs deposed to by Hannatu Abdurrahman, a member of the legal team of the 3rd and 4th Respondents. Three (3) Exhibits were annexed thereto. The Counter-Affidavit of the 5th Respondent dated and filed on 19/8/2011 was deposed to by Ibrahim Ngada a counsel in the Law Firm of J.K. Gadzama & Partners LLP. The Counter-Affidavit has two (2) Exhibits attached to it. The Petitioner filed a Written Address in support of the application on 11/8/2011.
The 1st, 2nd, 6th – 42nd Respondents along with their Counter-affidavit filed a Written Address to the Petitioner’s application on 15/8/2011. The Written Address of the 3rd and 4th Respondents was also filed on 15/8/2011. The Written Address of the 5th Respondent was filed along with the Counter affidavit
On 19/8/2011. The Petitioner formulated two (2) issues for determination:- “1. Whether the interpretation of the words “access” and/or “inspection” as used in the order of this Honourable Court do not carry with them all interpretation of investiture of right on the Petitioner to electronically open the 1st and 2nd Respondents data base for the purpose of using the information stored therein to maintain and defend its petition filed before this Honourable Court.
2. Whether the attitude of the Respondents with regard to the order of the Court made on the 24th day of May, 2011 amounts to circumstances warranting this Court to exercise its powers pursuant to paragraph 18(11) of the 1st Schedule to the Electoral Act 2010 as Amended and the Court’s inherent jurisdiction to enter judgment in favour of the Applicant.”
The 1st, 2nd, 6th – 42nd Respondents also formulated two (2) issues as fo11ows:-
“1. Whether the word “access” is ambiguous and can be interpreted to include taking copies of the INEC database in the context of the Ruling of this Court made on the 24th May, 2011.
2. Whether in the circumstances of this case the Respondents have failed to comply with the order of this Court made on the 24th day of May, 2011.”
The 3rd and 4th Respondents wholly adopted the issues formulated by the Petitioner while the 5th Respondent formulated two issues akin to those formulated by the 1st, 2nd, 6th – 42nd Respondents as follows:-
“1. Whether the use of the word “access” includes taking copies of INEC database for the use of the Petitioner or any other party in the Petition.
2. Whether from the circumstances of this Petition the Petitioner is entitled to have judgment entered on its behalf in respect of the motion on notice dated the 11th day of August, 2011.”
At the hearing of the Petitioner/Applicant’s motion on 15/8/2011, this Court, in the absence of any opposition by the Respondents granted Petitioner’s oral application for extension of the pre-hearing period for the purpose of hearing and determining the present application.
Also, both the Petitioner and the various Respondents raised objections and counter-objections on the legal propriety of their respective Counter affidavits and supporting affidavits. It is our considered view that the Respondents have given adequate answers to the objections in relation to
Section 87 of the Evidence Act raised by the learned Senior Counsel for the Petitioner/Applicant. In any event we do not consider it necessary to countenance any of such objections by either of the parties in our quest to deal with the merit of the application.
In this Ruling, we shall adopt the issues formulated by the Petitioner for determination. Also, the arguments canvassed by the Petitioner shall be considered on one side of the scale and barring emphasis, those canvassed by the 1st, 2nd, 6th – 42nd Respondents, the 3rd and 4th Respondents and the 5th Respondent shall together be put on the other side of the scale as the submissions of the “Respondents”. This is for reasons of the common interest between the Respondents and also for convenience.
As a starting point on Issue No.1, learned Senior Counsel for the Petitioner submitted that the Court has an inherent jurisdiction to clarify its order, given the nature of the dispute between the parties.
Counsel referred to the sixth Edition of Oxford Advanced Learner’s Dictionary of Current English by A.S. Hornby which defines “access” in relation to computer to mean – to open a computer file in order to get or add information.
Counsel added, that a functional definition of the word “access” was given by Dennis Jackson in a paper presented by a joint Network Team at Rutherford Appleton Laboratory, Chilton, Didcot, Oxfordshire, On Computer Misuse Act, 1990 as follows:-
“The Computer Misuse Act does not define the meaning of access in relation to computer material. The definition is very broad and call be summed up as causing a computer to perform any function to alter, erase, copy, move, use or output any program or data filed in a computer. From the definition it call be seen that access is a definite action. Watching over someone’s shoulder, electronic eavesdropping, wire tapping or other passive behavior do not constitute access. ”
Learned Senior Counsel for the Petitioner submitted further that the definition proffer d by Dennis Jackson is supported by Section 7 of the U.K. Data Protection Act which defines “access” as a right by which data subjects can obtain information about a controller s processing operations.
Also; counsel referred to the provision of Section 151(1) and (2) of the Electoral Act 2010 as amended which according to him lends credence to the definition of the word ‘access” by Dennis Jackson. Based on all of the above; Petitioner’s counsel submitted that the purpose of the Order made by this Court on 24th May 2011 is to institute maintain or defend an lection petition. That, this purpose cannot ‘be achieved by passive electronic eavesdropping or watching the computer screen over someone’s shoulder. And, that, it involve and envisages a definite action that is accommodative of causing a computer to perform any function or use or output any program or data held in its processing operations.
Counsel submitted that the definition of the word “access” by Dennis Jackson would decidedly enable the Applicant to demonstrate the unfairness of the process that yielded the 3rd and 4th Respondents as President elect and Vice President elect respectively and refusal of such definition would essentially truncate the Applicant’s right to maintain its election petition. According to counsel, the maintenance of the Applicant’s petition gave rise to the order of this Honourable Court dated the 24th day of May, 2011.
On Issue No. 1, the Respondents submitted that the first Order compels INEC to grant only “access to the biometric Data base” and did not empower any party to take copies of materials in the data base. That, the second Order, on the other hand compels INEC to grant access to inspect and take certified true copies (CTCs) of election materials.
The Respondents more particularly from the 5th Respondent reference was made to The Black’s Law Dictionary, 9th Ed. Page 14 which defines “access” as “An opportunity or ability to enter, approach. pass to and from, communicate with”. In other words, access means an opportunity or permission given to a party to be able to do something. The Respondents submitted that viewed from the above perspective the access granted by tins court to the Petitioner and other parties is “access” to the biometric database created by the DDC machine for register of voters, used at the Presidential Ejection on 16tth April, 2011.
Learned Counsel to the Respondents submitted that the use of the word “access” as contained in the Order of this Honourable Court as it relates to the biometric data base is clear and unambiguous and should be given the literal, common, natural and ordinary meaning ..And, that, even though what is sought to be interpreted in this application is an Order of Court; the same principles apply in the interpretation of statutes.
Taking off from this point, counsel to the Respondents referred to the decision of the Court of Appeal in the case of Sobamowo v. Elemurem (2008) 11 NWLR (Pt. 1097) 12. First, at page 27 that:-
“Statutes are to be construed according to the intention expressed in the Statutes themselves, and if the words are unambiguous, all that is needed is to expound the words in their natural and ordinary sense. The words of the statute alone in such case best declare the intention of the law makers. In other words, courts win decline to read into an enactment or statute words that are not to be found there and/or which win alter its operative effect. And at pages 28-29 that.-
“Commonsense must be applied in construing Statutes, and the object of the statute has to be considered. Furthermore, the construction most agreeable to justice and reason must be adopted. ”
Learned Senior Counsel to the Respondents then submitted that the ordinary, common, literal and natural meaning of the word “access” in the context of the order of this Court is that it do s not include the taking of copies of the biometric data base by the Petitioner or any party to the ejection petition. The Respondent submitted that from the onset INEC ha maintained that the Petitioner and every other party can have access to the data base by viewing same as ordered by this court. But, that the Petitioner seeks to extend the word “access” to include taking copies of database. Accordingly to the Respondents, it was not part of the agreement of the parties to the petition and consequently cannot be the Order of this Court that INEC should allow the Petitioner or any other party to make copies of database. If the Honourable court had intended that the Petitioner or any other party would have taken copies of the biometric data base, said the Respondents, it would have expressly said so in its Order as it did with regard to the 2nd arm of the Order.
Having not said so, it would be wrong to import the meaning that copies of the biometric data base could be taken by the Petitioner or any other party to the Order.
On this, learned ‘counsel for the Respondents referred to the cases of:
Osahon v. Federal Republic of Nigeria (2003).16 NWLR (Pt. 845) 89 at 119 and Awuse Y. Odili (2004) All F’VLR (Pt. 212) 1611 at 1664 and submitted that it is a cardinal rule of interpretation that the express mention of one thing excludes another “expressio unius est exclusio alterius”.
Still on Issue No.1, all the Respondents to this application have variously deposed in their Counter-affidavits that allowing the Petitioner to take copies of the biometric data base win exp se the voters and offend the constitutional provisions of secret voting or balloting and thereby jeopardizing not only the privacy of those voters but also affect State privilege, State security and official secrets.
The net effect of the depositions in paragraphs 10, 11 , 12, 13, 14, 15, 16, 17, 18, 19, 20 21 and 22 of the Counter-affidavit of the 1st 2nd, 6th -42nd Respondents, paragraph 12 of the Counter-affidavit of the 3rd and 4th Respondent and paragraphs 11 and 12 of the Counter-affidavit of the 5th Re pendent is that the decision of this Court on the pray r of the Applicant should have regard to National security, secret of over seventy-one million register d voter- and several minions who voted in the April 2011 General Elections.
For all of these, the Respondents referred to the provisions of Section 125(3)(a) and (b) of the Electoral Act and paragraphs 42(5)(b) of the First Schedule to the Electoral Act 2010 as Amended. Further reference was also made to the provision of Sections 1,7 and 9(1) of the Official Secrets Act Cap 335 Laws of the Federation 1990, which amongst others forbid’ the disclosure of certain classified matter or information. The Respondent are agreed that the purport paragraph 3.12 of the Petitioner’s Written Address is beyond a mere “access’ as “it wants to break open and use any function or output any program or data held in its procession operation.
Finally, the Respondents submitted that the basis of the DD machines is not the fulcrum of the Petitioner’ ca e as erroneously canvassed in paragraphs 3.13-3.14 of the Petitioner’s address. That, the application failed to show how the DDC machine is relevant to the proof apart from comparing it with manual voters register at the Petitioner claimed. It is not in dispute, said the Respondents that the voters’ register used in the election is the manual and not the electronic voters register.
Respondents urged us to not that neither INEC nor this Court has the ability and capacity to supervise, monitor, control and limit the use of crops of biometric data base once released to the custody, control, management and use of the Petitioner’ s experts.
Learned Senior Counsel to the Respondents referred to the case of Dokubo-Asari vs. Federal Republic of Nigeria (2007) 12 NWLR (pt. 1048) 320 at 358-359 and submitted that the word “access” and/or ‘ inspect” cannot be interpreted to mean taking copies of the database which has grave national implication. They urged the Court not to extend the interpretation of the word “access” to include taking copies of the INEC’s database as it is inimical to the voters right to privacy, and win jeopardize national security. The central question in relation issue No. 1 is whether to give a wide or restricted interpretation to the word “access’ as contained in the Order of this Court of 24th May 2011 consequent on the agreement of the parties to this petition.
On the one hand the learned Senior Counsel for the Petitioner suggested a wide, functional perhaps technical interpretation of the word “access’ in relation to the use of computers. On the other hand, the learned Senior Counsel to the Respondents insisted that the word “access” can only be interpreted in the context of the Order of Court of 24th May 2011 and/or the agreement of the parties which preceded the Order.
In the first place, the word ‘access’ may be used as a noun or a verb. The 7th Edition of the Oxford Advanced Learners Dictionary captures the two senses in which the word could be used as follows:-
“access/noun/verb
Noun – a way of entering or reaching a place:
verb:- (computing) to open a computer file in order to get or add information (formal) to reach, enter or use…”
Therefore, the word “access” particularly when it is used as a noun denotes ‘a way of entering or reaching a place’ and to that extent tallies with the definition contained in the 9th Edition of The Black’s Law Dictionary page 14 referred to by the learned Senior Counsel to the 5th Respondent as “An opportunity or ability to enter, approach pa s to and from, communicate with” as well as the id a of viewing or seeing a contained in the respective brief of the other two sets of Respondents. Now, it seems to us that whether used as a noun or a verb, the upper limit to the use of the word “access” in its natural, ordinary grammatical meaning is the opportunity or right to see a thing or use a thing.
In the instant case, perhaps to be more specific the word “access” in the Order of this Honourable Court of 24th May 2011 was used as a noun which indeed restricts its meaning to an opportunity or way to enter. The relevant Order reads thus:-
“1. An order that INEC shall grant the petitioner and any other party in the petition, their counsel, agents, or experts access to the biometric data base created by the DDC Machines for Register of voters, used at the Presidential Election held on 16th April 2011.
INEC shall give Notice to parties as to time, date and place for such exercise prodded that the absence of a party duly notified shall not delay such exercise. ”
From the above, it is appropriate to say that the word “access” in the Order of 24th May 2011 is unambiguous, and therefore a Court of law is enjoined by Rules of interpretation to give it, its natural grammatical and ordinary meaning devoid of any extraneous interpolations. This rule of interpretation in relation to the use of unambiguous words in a statute would apply with equal force in the construction or interpretation of words in a document and as in this case an Order of Court.
In the case of Tony Dimegwu v. Independence Ogunewe and 7 others (2008) 7 NWLR (Pt. 1116) 358 at 383, Saulawa JCA delivering the lead judgment of the Port Harcourt Division of the Court of Appeal had tin to say on the interpretation of unambiguou words:-
“It should be reiterated, for the avoidance of doubt, that it is well trite doctrine that the actual words used in a statute ought to be accorded their literal, grammatical or ordinary meaning devoid of any sentiment, decoration or quibble. Invariably, a court has all obligation to give effect to such words used in a statute that appear to be plain and unambiguous. This trite doctrine is hinged on the belief that a court has no business reading into a statute words which are not used therein. See UBA Plc. v. Akparabony Comm. Bank (Nig.) Ltd. (2005) 35 WRN 98, (2005) 12 NWLR (Pt.939) 232 paragraph 8, Ogunmade v. Fadayiro (1972) 8-9 SC1, N.U.R.W. v. N.R. C. (1996) 6 NWLR (Pt. 473) 490 at 503, Buhari v. Obasanjo (2005) ALL FWLR (Pt. 273) 1 at 133-134, (2005) 13 NWLR (Pt. 941) 1 respectively.”
The Respondents in the instant case were also right to have submitted that the meaning of the word “access” in relation to the Order of this Honourable Court of 24th May 2011 must be seen in the context of the entire Order construed holistically as a whole. Relatedly, that because of the rule that the ‘express mention of on thing preclude the operation of an other’ , ‘expressio unius est exclusio alterius ” this court in the light of the second arm of the Order of 24th lay 2011 could not have intended that access” in first arm of the said Order carry ‘with it an interpretation of investiture of right on the Petitioner to electronically open the 1st and 2nd Respondents data base for the purpose of using and taking copies of the information therein. The Respondents argued that if this Court bad intended that the Petitioner or any other party would have taken copies of the biometric data base, it would have expressly said so in its Order as it did with regard to the 2nd arm of the Order.
That, having not said so, it would be wrong to import the meaning that copies of the biometric data base could be taken by the Petitioner or any other party to the Order.
In the cases of Osabon v. Federal Republic of Nigeria (2003) 16 NWLR (Pt. 845) 89 at 119 and Mohammed Abacha v. Federal Republic of Nigeria (2006) 4 NWLR (Pt. 970) 239 at 309-310, the Court of Appeal differently applied the principle and held that the principle of interpretation “expressio unius est exclusio alterius” simply means that where a statute mentions specific thing, those things not-mentioned are not intended to be included.
The foregoing would have been sufficient to dispose of the Petitioner’s/Applicant’s Issue No.1, but then as a matter of fact one must note that the Respondent have variously deposed in their Counter affidavits that allowing the Petitioner to take copies of the biometric data base win expose the voters and offend sundry provisions of the law on secret voting or balloting and jeopardize not only the privacy of those voters but also affect state security.
Even on this score, the caution b: the Respondents that the word “access” and or “inspect” cannot be interpreted to mean taking copy of the data base with grave national security implications cannot be ignored. In this respect, the provisions of Section 125(2) and (3) of the Electoral Act 2010 as Amended and Paragraph 42(5)(b) of the 1st Schedule to the Act are instructive.
Section 125(2) and (3) read as follows:-
“(2) 1’/0 person in attendance at a polling booth under this Section shall, except for some purpose authorized by law, communicate to any person information as to the name or number on the register of any voter who has not voted at the place of voting.
(3) No person shall:
(a) interfere with a voter casting his vote, or by any other means obtain or attempt to obtain in a polling unit information as to the candidate for whom a voter in that place is about to vote 0ne has voted for; or
(b) communicate at any time to any other person information obtained in a polling unit as to the candidate to whom a voter is about to vote or has voted for.
And Paragraph 42(5)(b) of the 1st Schedule as:
“(5) The tribunal or court shall
(b) in the examination of any witness who produces or win produce a document, ensure that the way in which the vote of a particular person has been given shall not be disclosed. ”
See also, INEC v. Action Congress (2009) 2 NWLR (Pt. 1126) 524 at 618.
As was said in the case of Dokubo-Asari v, Federal Republic of Nigeria (2007) 12 NWLR (Pt. 1048) 358-359:-
“However, if, in its role of interpretation, a Court makes pronouncement which may have the weight and effect of declaring a law or some part of the Constitution for that matter null and void, the Court must find support from the same Constitution or any other Statute of equal force. The pronouncement by the court below is that where National security is threatened or there is the real likelihood of it being threatened human tights or the individual right of those responsible take second place. Human rights or individual rights must be suspended until the National security can be protected or well taken care of. This is not anything new. The corporate existence of Nigeria as a united, harmonious indivisible and indissoluble sovereign nation, is certainly greater than any citizens liberty or right. Once the security of this nation is in jeopardy and it survives in pieces rather than in peace, the individual’s liberty or right may not even exist.”
In any event, commonsense must be applied in construing Statutes, and the construction must be agreeable able not only to the object of the Statute but also to reason and justice. See e.g. Sobamowo v. Elemurem (2008) 11 NWLR (pt. 1097) 12 at 27.
In the circumstances, the word “access” in the order of this Honourable Court on 24th may 2011 does not carry with it an interpretation of investiture of right on the Petitioner to electronically open the 1st and 2nd Respondents’ data base for the purpose of using and making copies of the stored therein.
Issue no.1 is resolved against the Petitioner/Applicant.
Issue No.2
In canvassing argument on this issue, learned senior Counsel for the Petitioner/Applicant reminded us to have recourse to the provision of section 149(d) of the evidence Act. Paragraph 18(11) of the 1st Schedule to the electoral Act 2010 as Amended together with particular consideration of the circumstances surrounding the Petitioner’s petition an associated facts as deposed to by the applicant in the affidavit in support of this application.
As a starting point, learned Senior Counsel for the Petitioner referred to various averments of the petition along with the testimony of witnesses in proof of the averments. On this, counsel for the petitioner referred in particular to paragraph 14, 17, 18, 19, 20, 31, 32, 33, 34, 35, 36, 37, altogether dealing with complaints of non-compliance, multiple voting, multiple thumb-printing and thereby gave notice to the 1st respondent that access shall be requested of her to allow the petitioner to check the finger prints on the face of the Ballot papers cast in the State, Local Governments. Wards, Polling Units of complaints in the petition to compare them with finger prints, entries in the biometric data base already in the custody of the 1st Respondent.
Petitioner’s Counsel submitted that the existence of the election materials and the biometric data base was never denied by the respondents. On this, Petitioner’s Counsel referred to paragraphs 13 and 35 of the Reply of the 1st, 2nd, 6th – 42nd Respondents, and paragraph 11 of the 5th respondent which was in response to petitioner’s paragraph 14.
Learned Senior counsel for the Petitioner questioned whether the conduct of the Respondents in not granting access to the data base in the custody of the 1st and 2nd respondents in spite of the order of this court and adequate notice to produce same for the purpose of maintaining its petition does not call for the application of section 149(d) of the Evidence Act and paragraph 18(11) of the 1st Schedule to the Electoral Act 2010 as Amended.
Counsel for the Petitioner submitted that in order to enable the Court invoke the provision of Section 149(d) against a party, the party urging the court so to do is required to prove the following:- “(1) That the piece of evidence is available; (2) That if it a document, it could be produced by the application of due diligence; (3) That the document is capable of production in court; (4) That the party has intentionally refused to produce it; (5) That if produced the evidence would be adverse to him.” – Per Tobi, JCA in Udo v. Okupa (1991) 5 NWLR (Pt.191) 262 at 386.
Learned Senior Counsel to the Petitioner further referred to the cases of Union Bank of Nigeria Plc. v. Ishola (2001) 15 NWLR (Pt.375) 47 at 80 – 81 and Tsokwa Motors (Nig.) Ltd. v. Awoniyi (1999) NWLR (Pt. 586) 199 at 207 and submitted that the respondents do not want to allow the petitioner access to the data base and other election materials because they would have disclosed multiple voting and substantial non-compliance with electoral process and the data base and election materials were withheld by the Respondents because they were against: them,
Counsel submitted further relying on the decision of the Court of Appeal in the case of Edonkumoh v. Mutu (1999) 2 LRECN 473 that where a document is in custody of a parry and notice is given to That parry to produce the said document at the trial and that party refused in spite of the notice, the reasonable conclusion is a presumption that if the document is produced it will be unfavourable to the party withholding it. The burden, said counsel rests on the Petitioner. The burden shifts on the Petitioner only if access is given and the Honourable Court is in the circumstances to presume, without any proof that evidence, which could be produced by the Respondents but withheld by them, would go against them.
After references were made to the case of Salako & Ors v. William & Anor. (1998) 11 NWLR (Pt. 57-4) 505 at 520 and Jalico Ltd. Y. Owoniboys Technical Service Ltd. (1995) 4 NWLR (Pc 391) 534, as authorities for the proposition that a party must always put all his cards on the table for the adversary to see for the purpose of preparing to fight his case. Counsel submitted that by the Respondents failure to allow the Petitioner access to complaint, the presumption in section 149(d) of the Evidnece Act must be called into play, namely that either such election materials and data bade that were in the centre of the compliant did not exist, or that if they existed, the evidence arising therefrom would have been unfavourable to the Respondents.
Learned Senior Counsel to the Petitioner submitted that the option open to the Honourable Court in the circumstances of this case arc not open for conjecture. According to him. paragraph 18((11) of the 1st Schedule to the Electoral Act 2010 as Amended provides an answer. It says
“(11) If a party or his Legal practitioner fails to attend the pre-hearing sessions or obey a scheduling or pre-hearing
“(11 ) If a parry or his Legal practitioner fails to attend the pre-hearing sessions or obey a scheduling or pre-heating order or is substantially unprepared to participate in the session or fails to participate in good faith, the tribunal or court shall in the case of
(c) the Petitioner, dismiss the petition, and
(d) a respondent enter judgment against him. ”
Applicants Counsel concluded that the Respondents have jointly and severally frustrated the execution of the pre-hearing Order dated the 24th of May 2011 and judgment can in the circumstance be entered against them.
As against the above, the Respondents have submitted that they have not in any way failed, refused or neglected to comply with the order of this court made on the 24th may, 2011. Also that the court cannot enter judgment in favour of the Petitioner on declaratory reliefs when no evidence has been laid before the court in proof of the declaration. This, according to the Respondents is because an order for declaration cannot be made on admission or on the pleadings without oral evidence or any evidence in support of the pleadings.
On this, counsel to the respondents, relied on the cases of Kwajafa v. B.O.N. Ltd. 2004 13 NWLR (pt.889) 146 at 172; Maja v. Samours (2002) 7 NWLR (pt.765) 78 at 100-101; Aregbsola v. oyinlola (2011) 9 NWLR (pt.458) at 594; Salau & Ors. v. Para-Koyi (2001) 1 NWLR (pt.695) 441 at 456.
A claimant for a declaratory order, they said, must succeed on the strength of his case not on the weakness of the case for the defendant – Eya & Ors. v. Qudus & Ors (2001) 15 NWLR (Pt. 717) 587 at 624.
Besides, said the respondents, Section 149(d) of the Evidence Act does not petition and the Petitioner has not proved the particular evidence the Respondents have failed to call in that the presumption under the said law should be made against the Respondents. On this the Respondents referred to the case or Oguonze v. State (190R) 5 NWLR (Pt. 551) 521 at 553.
More particularly from the 3rd and 4th Respondents, it was further submitted that he Petitioner’ application is incompetent, in that the two prayers in the motion are paradoxically contradictory since prayer No.2 is dependent on the courts interpretation of the word “access” in prayer No.1 and therefore anticipatory.
We think that the answer to issue No. 2 is intricately connected to the answer that this Honourable Court had given in the treatment of Issue No. 1. The Respondents having not failed to comply with the Order of Court of 24th 149(d) (now action 167 of the Evidence Act 2011 as amended) of the Evidence Act nor that of paragraph 18(11) of the 1st Schedule to the Electoral Act 2010 as amended can be successfully invoked by the Petitioner/Applicant.
Indeed, the possibility of invoking the provision of paragraph 18(11) of the 1st Schedule to the Electoral Act as amended further caught by the position of the law that a declaratory relief cannot be granted merely on default of defence or even on admission. There is no gainsaying that in essence the Petitioner is seeking for declaratory reliefs before this Court.
In Maja v. Samours (2002) 7 NWLR (Pt. 765) 78 at 100-101, the Supreme Court held that-
“The Court does not make declarations of rights either on admission or in default of defence without hearing evidence and being satisfied by such evidence to the plaintiff’s entitlement to such a right. The requirement of oral evidence arises from the fact that the Court has a discretion to grant or refuse a declaratory relief and its success depends entirely On the strength of the plaintiff’s own case and not on defence.” See also, Aregbesola v. Oyinlola (2011) 9 NWLR (Pt. 1253) p. 458 at 594.
In the circumstance, Issue No.2 is also resolved against the Petitioner.
Having resolved the two (2) issues in the Applicant’s motion of 11/8/2011 as against the Petitioner/Applicant, the Petitioner’s application lacks merit and it is accordingly dismissed.
There shall be no order as to costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.
IGNATIUS IGWE AGUBE, J.C.A.: I agree.
OBANDE OGBUINYA, J.C.A.: I agree.
Appearances
Oladipo Okpeseyi, SAN
Ismaila Alasa Esq.
Imhanobe Sylvester O. Esq.
O.O Obono-Obla Esq. (Mrs)
Joshua Akor Esq.
Mary Ekpere Esq. (Miss)
Daisy Anagende Esq.
Ikpebe Emmanuel Idoko For Appellant
AND
APPEARANCES FOR 3RD & 4TH RESPONDENT
Dr. Alex A. Izinyon SAN
Mr. Ighodalo Imadegbelo, SAN
Mr. O.A. Omonuwa, SAN
Dr. Fbian Ajogwu, SAN
Bola Aidi
Audu Anuga, Esq.
Abimbola Kayode, Esq.
Okwy Anozie, Esq.
Dodo, SAN
Mr. J.T.U. Nnodum, SAN
M. Paul Erokoro, SAN
F.F. Egele, Esq.
Ehi Uwaifoh, Esq.
U. Egbon, Esq.
Gbenga Adcyemi, Esq.
John Okoriko, Esq
Kenneth Omoruan, Esq.
Chineye Onyemaizu, Esq.
Fetus Jumbo. Esq.
Rachael Osibu
A.L. Yabidu (Miss)
Okonache Ogor. Esq.
Aisha Ali, (Miss)
Hanuatu Abdurrahman (Mrs.)
Ifeyinwa Arunu
Babara Omosun (Miss)
Patrick Abang, Esq.
Njideka Odili (Miss)
Ginika Ezeoke (miss)
APPEARANCE FOR 1ST, 2ND, 6TH TO 42ND RESPONDENT
Kehinde Ogunwumiju
D.E. Daniel
ANulika Osuigwe (Miss)
APPEARANCE FOR 5TH RESPONDENT (PDP)
Chief Joe-Kyari Gadzama, SAN
C.U. Ekomaru, SAN
J.N. Egwuonwa, Esq
Mrs. J.O. Adesina
E.S. Oluwabiyi, Esq
Nneka Bon-Nwakanma (Mrs)
N.N. Shaltha (miss)
I.D. Odanwu Esq.
D.H. Bwala, Esq.
Ifeanyi Okechukwu Esq
Ayo Babalola, Esq
J.M. Ugbeji (Miss)
A.T. Gaya, Esq
Ifeanyi Odom Esq.
Chief Amaechi Nwaiwu, SAN
G.S. Pwul, SAN
Mohammed Mongono Esq.
Magai Vimtim Magai, Esq.
A.C. Ozioko Esq.
C.P. Oli, Esq.
Chiyere Onyedim (Mrs).
A.S. Akingbadem, Esq.
Ngozi Udokwu (Miss)
Chijoke Uwandu, Esq.
I.H. Ngada, Esq.
D. Saleh, Esq.
C.T. Danjuma, Esq. For Respondent
