HON. JOSEPH EFFIONG ETENE V. HON. SAVIOUR OKON NYONG & ORS.
(2011)LCN/5080(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of September, 2011
CA/C/NAEA/202/2011
RATIO
DIFFERENCE BETWEEN A WITNESS STATEMENT ON OATH AND AN AFFIDAVIT.
It must be stated immediately that a witness statement on oath is different from an affidavit. An affidavit is a statement of fact which the maker or deponent swears, to be true to the best of his knowledge. It is a court process in writing, deposing to facts within the knowledge of the deponent. It is documentary evidence which the court can admit in the absence of any unchallenged evidence. Akpokinloye v. Agas (2004) 10 NWLR (Pt. 881) Pg 394. Whereas a witness statement on oath is not evidence. Before a witness statement would be taken as evidence the witness would be sworn in, in court. He will state his name, trade or profession and gives his address. He thereafter adopts his written statement and is cross examined on it before it can be admitted in evidence. It is therefore wrong for the Tribunal to equate a witness statement with an affidavit as envisaged by S 90 of the Evidence Act. PER. UZO NDUKWE-ANYANWU,J.C.A
CIRCUMSTANCE WHERE A TRIBUNAL CAN ONLY STRIKE OUT OR DISMISS A PETITION
The Tribunal can only strike out or dismiss a petition on the grounds that the violation complained of affects a provision of the substantive Act or of the First schedule of the Act. The Tribunal did not dismiss the petition on the ground that the address of the 1st Respondent as given or furnished by the petitioner violated any provision of the substantive Act. The dismissal was on the basis of paragraph 6 of the First schedule. However Section 140(4) of the Electoral Act as amended is “subject to the provisions of paragraph 53(2) of the First schedule to this Act.” In Idehen vs Idehen (1991) 6 NWLR (Pt.198) 382 Karibi-Whyte, JSC, held at page 418 that: “The phrase has been construed in Oke vs Oke (supra), Olowu vs Oluwo (1985) 3 NWLR (Pt.13) 372; Tukur vs. Government of Gongola State (1989) 4 NWLR (Pt.117) 517; Olatunbosun vs NISER (1988) 3 NWLR (Pt.80) 25; Aqua Ltd vs Ondo State Sports Council (1988) 4 NWLR (Pt.91) 622. In each of these cases the phrase has been construed to render the provision to which it is subject conditional upon compliance with what is required in the provision referred to.” PER.JOSEPH TINE TUR, J.C.A
DIFFERENCE BETWEEN WHAT CONSTITUTES AN IRREGULARITY AND A NULLITY.
There is a difference between what constitutes an irregularity and a nullity. In Madukolu & Ors vs Nkemdilim (1962) NSCC 374 Bairamian F.J., held at p.380 that: “Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided, the defect is extrinsic to the adjudication. If the Court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial; the argument wilt be that the irregularity was so grave as to affect the fairness of the trial and the soundness of the adjudication. It may turn out that the party complaining was to blame, or had acquiesced in the irregularity or that it was trivial; in which case the appeal court may not think fit to set aside the judgment. A defect in procedure is not always fatal. “In Adeigbe & Anor vs. Kusimo & Ors (1965) NSCC 188 Ademola C.J.N. held at page 191 that:
” …There seems to be a confusion of thought between jurisdiction and regularity: between the competence of the court to hear the case and the propriety of a bench who had not heard all the evidence adjudicating on the case. ” PER.JOSEPH TINE TUR, J.C.A
CIRCUMSTANCES WHERE A COURT IS COMPETENT
This matter was aptly put in a judgment of this court in the appeal Gabriel Madukolu v. Johnson Nkemdilim FSC. 344/1980 (unreported) decided on the 12th day of November, 1962, where Bairamian, F.J. put it thus:- “A court is competent when-
(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(3) The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
He continues: “Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication. If the court is competent, the proceedings are not a nullity, but they may be attacked on the ground of irregularity; in the conduct of the trial;…” PER.JOSEPH TINE TUR, J.C.
Before Their Lordships
UZO NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria
JOSEPH T. TURJustice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJUJustice of The Court of Appeal of Nigeria
Between
HON. JOSEPH EFFIONG ETENEAppellant(s)
AND
1. HON. SAVIOUR OKON NYONG
2. I.N.E.C.
3. RESIDENT ELECTORAL COMMISSION CROSS RIVER STATERespondent(s)
UZO NDUKWE-ANYANWU,J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Tribunal holden at Calabar. The appellant was the Petitioner at the tribunal and the respondents were also the respondents at the Tribunal. The 1st respondent at the tribunal in a motion on notice prayed the court for the following reliefs.
1. An order dismissing this Petition No: EPT/CR/SA/2011 as incompetent for failure to comply with the provision of the Electoral Act 2011 (as amended).
In the alternative
2. An order strking out as incompetent the written statements on oath of Hon. Joseph Etene, Chief Eneyo Eyo, Hon. Ari Esim, Mr. Christopher Okon, Chief Emmanuel Etene and Hon. Esemin Ekpenyong filed in this petition.
3. And for such further Order(s) as this Tribunal may deem fit to make in the circumstances of this case.
The issues raised by the 1st respondent for consideration was;
1. Whether failure by the Petitioner to plead the result to consider authentic for Bakassi State Constituency in addition to the result for the constituency declared by Independent National Electoral Commission (INEC) is not fatal to his application.
2. Whether the petition has complied with the provisions of paragraph 6 of the First Schedule to Electoral Act 2010, and if not whether that omission is enough to render the petition incompetent.
3. Whether the various written statement on oath the petition have complied with Section 90 of the Evidence Act and paragraph 4(5)(1) of the First Schedule to the Electoral Act, 2010 (as amended).
In a considered ruling the Tribunal held that the petition was incompetent for the following reasons:
(a) That the Petitioner failed to place before the Tribunal scores of the candidates to compare. See para 4(1).
(b) That the Petitioner did not furnish his address for service with any exactitude. The addresses given were vague.
(c) That the witness statements were not in conformity with S.90 of the Evidence Act and para 4(5)(1) of the 1st Schedule to the Electoral Act 2010.
Being dissatisfied by the judgment the petitioner filed his notice of appeal with 3 grounds. The Appellant thereafter filed his appellant’s brief on 6th August, 2011 and his appellant’s reply brief on 2nd September, 2011 and adopted them as his argument in this appeal.
The 1st respondent also adopted his respondent’s brief filed on 29th August, 2011 and urged the court to dismiss this appeal. The 2nd and 3rd respondents filed no briefs.
The Appellant formulated 3 issues for determination as follows:
1. Whether the tribunal was right when it found that the appellant failed to plead the result he considered authentic.
2. Whether by the combined effect of paragraphs 6, 8(2) (3)(a) of the 1st Schedule of Electoral Act, 2010 as amended and the unconditional entry of appearance of the 1st respondent it can legally be asserted that his address was not furnished to the Secretary warranting the dismissal of the petition.
3. Whether the trade or profession and addresses given by the witnesses does not met the requirement of Section 90 of the Evidence Act.
The 1st respondent adopted the same issues formulated by the Appellant.
In issue 1, the appellant argued that he filed 2 sets of scores the one announced by 2nd and 3rd respondents and the one appellant thinks is the authentic scores. see para, 3 and para 4 of the Petitioner’s petition.
The appellant in his Petition pleaded votes declared by the 2nd and 3rd respondents in para 3 of his Petition. He also went ahead to make a chart of a series of scores in many wards on page 4 of his petition.
There are many sets of scores pleaded in the petition. At this stage of the trial, it is enough. It is the petitioner’s case and he alone knows what is important to him to prove his petition against the respondent.
The Tribunal went into the substantive case at pleading stage. Pre-hearing has not even been ordered and Forms TF 007 and TF 008 have not been served on the parties. The courts have warned in a plethora of cases that courts should warn themselves about pronouncing on issues to be trashed out during trial at the preliminary stages.This issue is therefore resolved in favour of the Appellant.
Issue 2
This issue was one relating to addresses of the parties, whether vague or exact. It would appear that a lot of dust was raised by the 1st respondent who was challenging the address given by the Appellant as being inadequate OR vague. The idea of giving specific residential address was for ease of tracing the parties. lf a party is found with what is supposedly a vague address all is well and good. The idea is to trace the party and serve him with the necessary initial court processes. After that, the subsequent processes would be served on his counsel.
It also appears that the 1st respondent also used the same vague address i.e. c/o Bakassi Local Government for his own witnesses. If it is good for him to use, why not the petitioners. The 1st Respondent was personally served and has entered appearance unconditionally, he can no longer complain. This is a procedural problem that does not affect the competency of the Petition.
The Tribunal was therefore wrong in holding that it lacked jurisdiction to adjudicate on the Petition as constituted i.e. without an exact address of the respondent provided.
This Issue is also resolved in favour of the Appellant.
Issue 3
This third issue is whether the trade or profession and addresses given by the witnesses meet the requirement of Section 90 of the Evidence Act.
It must be stated immediately that a witness statement on oath is different from an affidavit. An affidavit is a statement of fact which the maker or deponent swears, to be true to the best of his knowledge. It is a court process in writing, deposing to facts within the knowledge of the deponent. It is documentary evidence which the court can admit in the absence of any unchallenged evidence. Akpokinloye v. Agas (2004) 10 NWLR (Pt. 881) Pg 394. Whereas a witness statement on oath is not evidence. Before a witness statement would be taken as evidence the witness would be sworn in, in court. He will state his name, trade or profession and gives his address. He thereafter adopts his written statement and is cross examined on it before it can be admitted in evidence. It is therefore wrong for the Tribunal to equate a witness statement with an affidavit as envisaged by S 90 of the Evidence Act. This issue is also resolved in favour of the Appellant.
Having resolved the 3 issues raised in favour of the Appellant, this appeal is therefore allowed. The Ruling of the Tribunal is hereby set aside. The Petition is hereby remitted to the Tribunal for trial. Forms TF 007 and Forms TF 008 are to be issued to the parties as an ancillary order of the court necessarily flowing directly and naturally from and inevitably consequent upon the judgment already given (1999) 1 NWLR (Pt. 617) Pg. 116.
I make no order as to costs.
JOSEPH TINE TUR, J.C.A: I have read in advance the judgment of my Lord Ndukwe-Anyanwu, JCA, and I concur.
The Election Tribunal dismissed this petition on the 9th day of July, 2011 principally on the grounds that the petitioner did not state clearly the 1st Respondent’s address where the processes of the Tribunal may be served on him but simply put it as “C/O Bakassi Local Government” in the petition. That this offended paragraph 6 of the Electoral Act, 2010 as amended. Paragraph 6 of the 1st Schedule to the Electoral Act, 2010 as amended reads as follows:
“6. For the purpose of service of an election petition on the respondents, the petitioner shall furnish the Secretary with the address of the Respondents, abode or the addresses of places where personal service can be effected on the respondents.”
Paragraph 6 of the 1st Schedule clearly shows that the petitioner is to furnish to the Secretary either the respondent’s place of abode, namely, residence, or the place where personal service can be effected on the respondent which ever applies.
One may ask: How did the 1st Respondent know that his return as the duly elected member of the State House of Assembly to represent Bakassi Local Government Area in Cross River State was being challenged at the Tribunal? How did the processes get to him and he transmitted same to his learned Counsel to file an unconditional memorandum of appearance on his behalf on 27-5-2011 in the following manner:
“Please enter an appearance for HON. SAVIOUR OKON NYONG who is being sued as the 1st Respondent in the above petition. And take further notice that the name and address of the 1st Respondent’s Solicitor are as follows:
“Essien H. Andrew Esq,
Essien H. Andrew & Co.,
No. 37 Ekpo Abasi Street,
Calabar.”
Paragraph 9(5) of the 1st Schedule to the Electoral Act No. 6 of 2010 as amended provides as follows;
“(5) A respondent who has a preliminary objection against the hearing of the election petition on grounds of law may file a conditional memorandum of appearance.”
The 1st Respondent did not file a conditional memorandum of appearance to give notice he would raise a preliminary objection to the hearing of this petition. Moreover, paragraph 12(5) of the 1st Schedule as amended reads as follows:
“(5)A respondent who has an objection to the hearing of the petition shall file his reply and state the objection therein, and the objection shall be heard along with the substantive petition. ”
These provisions are meant to guide the tribunal in the determination of election petitions. They are not for fancy. Whether the petitioner provided the 1st Respondent’s address or not, the fact is that the 1st Respondent was aware that a petition was pending against him before the Tribunal and appeared to be served the processes. Thereafter the 1st Respondent furnished his address for service C/O his learned Counsel Essien H. Andrew, Esq, of No.37 Ekpo Abasi Street, Calabar where all processes meant for service on him should be effected. The 1st Respondent also appeared in the Tribunal and processes were filed by his learned Counsel. 1st Respondent took fresh steps after becoming aware of the fact that there was an irregularity in clearly not furnishing his address for service. Even if there was such an irregularity I am of the humble view that, that had been remedied by the 1st Respondent’s memorandum of appearance and Reply.
Paragraph 53(4) of the 1st Schedule to the Act supra as amended provides that:
“(4) An election petition shall not be defeated by an objection as to form if it is possible at the time the objection is raised to remedy the defect either by way of amendment or as may be directed by the Tribunal or Court.”
The Tribunal ought not to do cloistered justice by relying on irregularities that do not go to the root or competence of the petition nor render same a nullity. Those are the only recognizable grounds for dismissing a petition or striking out part of the proceedings under Section 140(4) of the Electoral Act, 2010 as amended made subject to the provisions of paragraph 53(2) of the 1st Schedule to the Act thereto.
Section 140(4) of the Electoral Act 2010 as amended reads as follows:
“(4) Subject to the provisions of paragraph 53(2) of the First schedule to this Act, on the motion of a respondent in qn election petition the Election Tribunal or the court, as the case may be, may strike out an election petition on the grounds that it is not in accordance with the provisions of this part of this Act, or the provisions of First schedule of this Act.”
The Tribunal can only strike out or dismiss a petition on the grounds that the violation complained of affects a provision of the substantive Act or of the First schedule of the Act. The Tribunal did not dismiss the petition on the ground that the address of the 1st Respondent as given or furnished by the petitioner violated any provision of the substantive Act. The dismissal was on the basis of paragraph 6 of the First schedule. However Section 140(4) of the Electoral Act as amended is “subject to the provisions of paragraph 53(2) of the First schedule to this Act.” In Idehen vs Idehen (1991) 6 NWLR (Pt.198) 382 Karibi-Whyte, JSC, held at page 418 that:
“The phrase has been construed in Oke vs Oke (supra), Olowu vs Oluwo (1985) 3 NWLR (Pt.13) 372; Tukur vs. Government of Gongola State (1989) 4 NWLR (Pt.117) 517; Olatunbosun vs NISER (1988) 3 NWLR (Pt.80) 25; Aqua Ltd vs Ondo State Sports Council (1988) 4 NWLR (Pt.91) 622. In each of these cases the phrase has been construed to render the provision to which it is subject conditional upon compliance with what is required in the provision referred to.”
The power of the Tribunal to strike out or dismiss a petition is therefore limited to the circumstances provided under paragraph 53(2) of the First Schedule to the Act which provides as follows:
“(2) An application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.”
The power to dismiss or strike out a petition or a proceeding is limited to irregularities or what constitutes a nullity. There is a difference between what constitutes an irregularity and a nullity.
In Madukolu & Ors vs Nkemdilim (1962) NSCC 374 Bairamian F.J., held at p.380 that:
“Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided, the defect is extrinsic to the adjudication. If the Court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial; the argument wilt be that the irregularity was so grave as to affect the fairness of the trial and the soundness of the adjudication. It may turn out that the party complaining was to blame, or had acquiesced in the irregularity or that it was trivial; in which case the appeal court may not think fit to set aside the judgment. A defect in procedure is not always fatal. “In Adeigbe & Anor vs. Kusimo & Ors (1965) NSCC 188 Ademola C.J.N. held at page 191 that:
” …There seems to be a confusion of thought between jurisdiction and regularity: between the competence of the court to hear the case and the propriety of a bench who had not heard all the evidence adjudicating on the case. ”
This matter was aptly put in a judgment of this court in the appeal Gabriel Madukolu v. Johnson Nkemdilim FSC. 344/1980 (unreported) decided on the 12th day of November, 1962, where Bairamian, F.J. put it thus:-
“A court is competent when-
(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(3) The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
He continues:
“Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication. If the court is competent, the proceedings are not a nullity, but they may be attacked on the ground of irregularity; in the conduct of the trial;…”
In my judgment the ground upon which the Tribunal dismissed appellant’s petition was so trivial that this constitutes a mockery of justice. The alleged defect had nothing to do with the jurisdiction of the tribunal. The defect if any had been waived by the learned counsel to the 1st Respondent filing a memorandum of appearance and Reply and thereafter appearing in court to contest the petition notwithstanding his having knowledge of the defect which his learned counsel had remedied. The issue of the address of the 1st Respondent had nothing to do with the fairness or soundness of the trial which had not yet commenced. The 1st Respondent’s complaint did not affect the conduct of the trial. There was no basis for dismissing the petition and I so hold.
I also allow this appeal and remit the petition to the Tribunal to be heard on the merit. I abide by the orders in the lead judgment.
ISAIAH OLUFEMI AKEJU, J.C.A: I read in draft form the lead judgment of my lord, Uzo I. Ndukwe-Anyanwu, JCA. I agree with the reasons given therein and the conclusion that the appeal has merit. I allow the appeal and abide by the consequential order in the lead judgment.
Appearances
For Appellant
AND
For Respondent
