OTU BASSEY EKPENETU V. MFAWA OFEGOBI & ORS (2013)

OTU BASSEY EKPENETU V. MFAWA OFEGOBI & ORS

(2013)LCN/6728(CA)

In The Court of Appeal of Nigeria

On Monday, the 2nd day of April, 2012

CA/C/NAEA/280/2011

RATIO

NATURE OF THE RIGHT TO FAIR HEARING

In Ndukauba v. Kolomo (2005) 4 NWLR (pt. 915) p.411, the Supreme Court per Oguntade, JSC, identified the following as indices of fair hearing in civil litigation:

i. A party is entitled to counsel of his choice.

ii. A party must be afforded the opportunity to call all necessary witness in support of his case.

iii. A party by himself or counsel must have the opportunity to cross-examine or otherwise challenge the evidence of witnesses called by his adversary.

iv. At the close of the case in accordance with the relevant court rules, a party must have the same right as given to his adversary to offer by his counsel the final address on the law in support of his case.

In the case of Njiokwuemeni V. Ocher (2004) 15 NWLR (Pt.895) p.196, the court also stated the features of fair hearing that the affected parties must be allowed:

i. To be present all through the proceedings, to hear all the evidence against him.

ii. To cross examine or otherwise confront or contradict all the witnesses who testified against him.

iii. To have read to him all the documents tendered in evidence at the hearing.

iv. To have disclosed to him the nature of all relevant material evidence including documentary evidence prejudicial to him, except in recognized exceptions.

v. To know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and

vi. To give evidence by himself, call witnesses, if he likes, and make oral submissions either personally or through the counsel of his choice.

The right of a person to a fair hearing is so fundamental to our concept of justice that it can neither be waived nor taken away by a statute, whether expressly or by implication. Fair hearing is not only a common law right but also a Constitutional right. Thus by virtue of Section 33(1) of the Constitution of the Federal Republic of Nigeria, 1979, relied upon in the present case, in the determination of his civil rights and obligations, a person is entitled to a fair hearing by a court or other tribunals established by law. The requirement of this provision of the Constitution entails the observance of the twin pillars of the rules of natural justice, namely audi alteram partem and nemo judex in causa sua. See also the cases of: (1) Ntukidem v. Oko (1986) 5 NWLR (Pt.45) p. 909; (2) UNTHMB v. Nnoli (1994) 8 NWLR (Pt.363) p.376 and (3) Bamgboye V. University of Ilorin (1999) 10 NWLR (Pt.622) p.290. In the case of: Effiom V. The State (1995) 1 NWLR (pt.373) p.507, the Supreme Court held that, a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing.

The true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case.

In the case of NEPA V. Eze (2001) 3 NWLR (PT. 701) p.606 at p.618 Para. 1, p.619 paras. A-B; OPENE, JCA, succinctly restated the age-long common law principle of fair hearing in the following words:

The right of fair hearing is entrenched in section 36 (1) of the 1999 Constitution, where a party is entitled to be heard before a decision is given in a case before the court that party should be given an opportunity to be heard and present his case before the court. It is also a cardinal principle of our law that both sides in case should be heard before the Court arrives at its decision.

The fundamental or sacrosanct nature of the right of fair hearing has been fully expounded in the case of Okonkwo V. Okonkwo (1998) 10 NWLR (Pt.571) p.554 at p.550. It was observed as follows: –

The rule of audi alteram partem, the obligation to hear the other side of a party in a dispute to be heard, is so basic and fundamental a principal of our adjudicatory system in the determination disputes that it cannot be compromised on any ground.

A denial of the right of fair hearing completely vitiates the whole trial. It is pertinent to observe that the right of fair hearing is not a technical doctrine, it is one of substance. It therefore follows that where there is a cry of the breach of a right of fair hearing, that, it is the duty of the court to examine the proceedings to ascertain whether there is such a breach.

In the instant matter, I have no doubt in my mind that the throwing away and total rejection of the evidence of all the Appellant’s witnesses by the Tribunal in the way it did is a clear violation of the Appellant’s right to fair hearing. This action of the Tribunal has in my view occasioned miscarriage of justice to the Appellant.

A denial of the right of fair hearing has the effect of vitiating a whole trial. See the case of; (1) NEPA v. EZE, supra, and (2) IDAKWO v. EJIGA (2002) 13 NWLR (Pt.783) p.783. It is my strong opinion and I hold that in the present matter, the evidence of the witnesses of the Appellant was out rightly rejected and not even allowed to be tested. This is a denial of the Appellant’s constitutional and fundamental right to fair hearing. Hence, the Appellant is entitled to have the whole trial in the Tribunal set aside. I hold that the Appellant’s petition was heard and determined by the Tribunal in violation of the principles of fair hearing. The proceedings of the Tribunal are liable to be nullified. See the case of: Gov. of Ekiti State v. Osayomi (2005) 1 FWLR (pt.250) p.75. Per OYEBISI FOLAYEMI OMOLEYE, J.C.A.

WHETHER A COURT OF LAW CAN IGNORE TECHNICAL PROCEDURES WHERE NO MISCARRIAGE OF JUSTICE WOULD BE OCCASIONED

Courts of law should not be unduly tied down by technicalities particularly where no miscarriage of justice would be occasioned. Justice can only be done in substance and not by impeding it with mere technical procedural irregularity that occasioned no miscarriage of justice. Thus where the facts are glaringly clear, the court should ignore mere technicalities in order to do substantial justice.

In the case of Omoju v. F.R.N. (2008) All FWLR (pt. 415) p. 1615 at p.1671 paras. F – G per Tobi JSC;

Courts of law have long moved away from the domain or terrain of doing technical justice to doing substantial justice. This is because technical justice in reality is not justice but a caricature of it. It is justice in inverted commas and not justice synonymous with the principles of equity and fair play.

Hon. Justice Iguh JSC had the following to say in the case of; Chime & Ors. v. Chime & Ors. (2001) 3 NWLR (pt. 701) p.527 at p. 533 paras. E – F.

I think it is now settled law that in appropriate cases, our courts now appear to be deliberately shifting away from the narrow technical approach to justice which characterized some earlier decisions of courts on various matters. Instead, it now pursues the course of substantial justice. See Consortium M.C. v. NEPA (1992) 6 NWLR (Pt. 246) 132 at 142.

Furthermore on this established principle of the law, in the case of; Amaechi v. I.N.E.C (2008) 5 NWLR (Pt. 1080) p.227 at p.344 paras E – F, Katsina-Alu JSC, restated the stance of the Supreme Court that:

In the interest of justice and fair play this court cannot shy away from doing substantial justice without any undue regard to technicalities. In matters of this nature, this court will not allow technicalities to prevent it from doing substantial justice. See Attorney-General of Bendel State v. Attorney-General of the Federal & Ors (1982) NWLR 116; Patrick Magit v. University of Agriculture Markurdi & Ors (2005) 24 NSC or 143; 19 NWLR (pt. 959) 211. Per OYEBISI FOLAYEMI OMOLEYE, J.C.A.

WHETHER THE FAILURE OF A DEPONENT TO COMPLY WITH THE OATHS ACT FORMAT CAN RENDER AN AFFIDAVIT DEFECTIVE

The general position of the law is that, failure of a deponent to comply with the format prescribed in the oaths Act could render an affidavit or any other deposition defective and incompetent. Per OYEBISI FOLAYEMI OMOLEYE, J.C.A.

Before Their Lordships

M.B. DONGBAN-MENSEMJustice of The Court of Appeal of Nigeria

O.F. OMOLEYEJustice of The Court of Appeal of Nigeria

M.A.A. ADUMEINJustice of The Court of Appeal of Nigeria

Between

OTU BASSEY EKPENETUAppellant(s)

AND

1. MFAWA OFEGOBI
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. THE RETURNING OFFICER, YAKURR I STATE CONSTITUENCY CROSS RIVER STATE
4. PEOPLES DEMOCRATIC PARTYRespondent(s)

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the State Houses of Assembly Election Tribunal sitting in Calabar, Cross River State, delivered on 11th November, 2011, in the petition challenging the election of the 1st Respondent into Yakurri I State constituency of the Cross River State House of Assembly, held on the 26th April, 2011.
The brief background facts of this matter are that, sequel to the declaration of the 1st Respondent as the winner of the election into the Yakurri I State Constituency of the Cross River State House of Assembly held on 26th April, 2011, the Appellant filed a petition on 17th May, 2011, to challenge the declaration. The petition was struck out based upon the preliminary objection of the 4th Respondent that the Appellant had failed to disclose his right to present the petition. The Appellant filed an appeal to the court of Appeal Calabar Division against the striking-out order of the Tribunal. That initial appeal was heard and judgment was delivered on 23rd September, 2011 and the petition was sent back to the Tribunal for trial on the merit.
At the Tribunal for the second time, the petition was dismissed on 11th November, 2011 because according to the Tribunal, the testimonies of the four witnesses for the Appellant not having complied with the provisions of section 13 of the oaths Act, Cap. 01, Laws of the Federal Republic of Nigeria, 2004, became inadmissible in evidence and were consequently discountenanced. The Appellant was dissatisfied with the judgment of the court of Appeal. On 15th November, 2011, the Appellant filed a Notice of Appeal to this court. The Appellant is seeking inter alia, the order of this court setting aside the said decision of the Tribunal. The Notice of Appeal consists of nine (9) grounds of Appeal. For easy reference, the nine grounds of appeal with their particulars are hereunder set out as follows:
GROUND 1
The Lower Tribunal erred in law when it rejected the statements on oath of PW1, PW2, PW3 and PW4 respectively on the ground that their statements on oath did not comply with Section 13 of the Oath’s Act, 2004, because the deponent failed to use the wordings used exactly by the legislature of the Oath Act.
PARTICULARS OF ERROR
I. The Statements on Oath of PW2; PW2; PW3 & PW4 respectively substantially conformed to the provisions of Section 13 of the Oaths Act.
II. The insistence of the lower Tribunal that the deponent to a statement on oath should have reproduced the Form in the Schedule to the Oaths Act word for word is crass technicality that is at variance with the current jurisprudence that substantial justice must prevail over technical justice.
III. It was clear that the swearing of another Oath by the witness operates to validate whatever defect was apparent in the statement including non-compliance with the provisions of the Oaths Act.
IV. The authority of Obumneke V. Sylvester which the Tribunal relied on was not applicable because there were also other authorities such as Femi Adekanye v. Controller of Prisons that says that an affidavit that substantially conforms to Section 13 of the Oaths Act is competent.
GROUND TWO
The Lower Tribunal erred in law when it held that it cannot evaluate documentary evidence tendered by the Appellant because there was no nexus between the documentary evidence and oral evidence.
PARTICLARS OF ERROR
I. The Tribunal was bound to evaluate documentary evidence after it had been received by it.
II. The documentary evidence before the Tribunal were pleaded by the Appellant and formed the thrust/substratum of his case.
III. The documentary evidence were tendered by consent of the parties.
IV. It is well settled that oral evidence cannot be used to alter or vary or contradict the contents of a document.
V. It is well settled that in election petition litigations a tribunal can decide a matter only on documentary evidence before it.
GROUND THREE
The Tribunal erred in law when it granted the 2nd & 3rd Respondents motion for extension of time even though the Respondents placed absolutely nothing before the Tribunal to enable it exercise its discretion in their favour and extend time.
PARTICULARS OF ERROR
I. The Motion for extension of time filed by the 2nd & 3rd Respondents was an admission that the Reply of the 2nd & 3rd Respondents filed on the 15th June, 2011 was filed out of time.
II. The 2nd & 3rd Respondents were served with the Petition on the 26th May, 2011.
III. By paragraph 12 (1) of the First Schedule to the Electoral Act, the Respondents had 14 days from service of the Petition to file their Reply.
IV. The Appellant had filed a Motion that the Tribunal should exercise its discretion vested on it by the provisions of Paragraph 36 of the First Schedule to the Electoral Act and allow the Appellant to proceed into hearing since the Respondents had failed to file a Reply.
V. The Tribunal had no jurisdiction to grant an application for extension of time despite the provisions of Paragraph 45 of the First Schedule to the Electoral Act in view of the provisions of Section 285(7) of the Constitution which provides that an election petition must be heard and judgment delivered within 180 days from filing.
VI. The provisions by the Electoral Act that a Petition must be filed within 21 days from the date of Declaration of Results imposes on a Respondent a corresponding duty to file his Reply within the time stipulated by the Paragraph 12 (1) of the First Schedule to the Electoral Act.
GROUND 4
The Tribunal erred in law when it refused to consider all the issues raised and canvassed by the Appellant in his Final Written Address.
PARTICULARS OF ERROR
I. The Tribunal was bound to consider all issues legitimately raised and canvassed by the Appellant in his Final Address.
II. The Tribunal infringed on the right of fair hearing of the Appellant by refusing or failing to consider and pronounce on all the issues legitimately raised and canvassed by the Appellant.
GROUND 5
The Tribunal erred in law when it rejected the Statements on Oath which witnesses called by the Appellants had given indication they wanted to adopt as their evidence in chief.
PARTICULARS OF ERROR
I. The Tribunal ought to have allowed the witnesses to adopt their Statements on Oath.
II. The Tribunal rather ordered that the statements on Oath to be marked received and rejected.
III. The Statements on Oath were not supposed to be received as documentary evidence but as oral evidence or evidence in chief of witnesses called by the Appellant.
IV. The adoption of a wrong procedure by the Tribunal occasioned a miscarriage of justice on the Appellant.
V. The refusal of the tribunal to adopt witnesses deposition of the Appellant on a purely technical ground infringed on the right of fair hearing of the Appellant as secured by section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
GROUND 6
The Tribunal erred in law when it held that the Replies of the Respondents to the Final Written Address of the Appellants were not filed out of time.
PARTICULARS OF ERROR
I. The Reply of the 1st Respondent was purportedly filed on the 7th November, 2011, which was a Public Holiday and the Registry of the Tribunal did not open to business on that day.
II. The Respondents were ordered by the Tribunal to file their Replies by the 5th November, 2011.
III. The 2nd, 3rd & 4th Respondents filed their Replies on the 8th November, 2011, contrary to the Order of the Tribunal without an application for leave for extension of time being brought by them.
GROUND 7
The Tribunal erred in law when it held that the Replies of the 1st and 4th Respondents were competent and filed within time.
PARTICULARS OF ERROR
I. The 1st Respondent was served on the 2nd June, 2011, with the Appellant’s petition, but filed his Reply on the 22nd June, 2011.
II. The 4th Respondent was served on the 26th May, 2011 but filed its Reply on the 15th June, 2011.
III. The provision of Paragraph 12 (1) of the First schedule to the Electoral Act provides that a Reply must be filed within 14 days of service of the petition by a Respondent.
IV. The Replies were decidedly filed out of the 14 days allowed by the provisions of paragraph 12 (1) of the First Schedule to the Electoral Act.
GROUND 8
The Tribunal erred in law when it refused to accede to the application of the Appellant that it should strike out the Final written Address of the 2nd, 3rd & 4th Respondents.
PARTICULARS OF ERROR
I. The 2nd, 3rd & 4th Respondents did not call any evidence but rested their case on that of the Appellant.
II. The 2nd, 3rd & 4th Respondents by refusing to call evidence had abandoned their Replies to the petition.
III. The 2nd, 3rd & 4th Respondents were not entitled to file any Written Address because of their failure to call evidence.
IV. The 2nd, 3rd and 4th Respondents were only entitled to file Replies on points of law arising from the written Address of the Appellant.
GROUND 9
The judgment is against the weight of evidence.
From the nine (9) grounds of appeal, the learned counsel for the Appellant formulated seven (7) issues for determination, as contained in the Appellant’s brief of argument dated 30th November, 2011 but filed on 2nd December, 2011. The issues are namely:
1. Was the Tribunal right when it sustained the objection of the Respondents to the admissibility (adoption) of the statements on Oaths of witnesses called by the Appellant on the ground that these statements did not strictly comply with the provisions of the Oaths Act, 2004; and was the sustainability of the objection by the Tribunal not an infringement on the right of fair hearing of the Appellant?
2. Whether the refusal of the Tribunal to evaluate documentary evidence tendered by both the Appellant and the 1st Respondent concerning the documents used by the 2nd Respondent to conduct the election on the ground of absence of oral evidence is correct; and if the answer to the above is in the affirmative, whether such refusal has not occasioned a miscarriage of justice on the Appellant?
3. Whether the Tribunal had jurisdiction to grant the 2nd & 3rd Respondents’ motion for extension of time to file their Reply on the 31st October, 2011, more than 150 days after the Petition was filed and more than 141 days after the 2nd and 3rd Respondents were out of time to file their Reply in view of the provisions of Section 285(7) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)?
4. Whether the Tribunal was correct when it held that the Reply of the 1st Respondent to the Petition was competent because it was filed within 21 days of service of the Petition?
5. Whether the Tribunal was right when it held that the Reply of the 4th Respondent was competent on the ground that it was relied on by the Court of Appeal solely to allow an appeal filed by the Appellant against an earlier order of the Tribunal striking out the Petition; and that the Appellant did not oppose the Motion filed by the 4th Respondent for amendment of the Reply?
6. Whether the Tribunal was right when it refused to strike out the Replies of the 2nd, 3rd & 4th Respondents after they failed to call evidence whether oral or documentary?
7. Whether the Tribunal was right when it refused to find in favour of the Appellant regard being had to the facts and circumstances of the case such as:
(a) Invocation of the principles of severance of pleadings.
(b) Consideration of all the issues raised by the Appellant in his final Written Address.
(c) Admissibility of the witnesses Statements of the Appellant and his witnesses.
(d) Incompetency of the Replies of the Respondents;
(e) Evaluation of the documentary evidence tendered from the bar with the consent of all parties?
In response to the Appellant’s brief of argument, the 1st Respondent in his brief of argument dated and filed on 7th December, 2011, distilled four (4) issues for determination. The issues read thus:
(i) Whether the Lower Tribunal was right, when it refused to admit the Statements on oath of the Appellant’s witnesses for non compliance with the mandatory Provision of Section 13 of the Oaths Act, 2004?
(ii) Whether the Lower Tribunal was right, when it held that there was no nexus between the documentary and oral evidence proffered in the Lower Tribunal to sustain the Appellant’s Petition in the Lower Court?
(iii) Whether the Lower Tribunal was right in granting the 2nd and 3rd Respondent’s Motion on Notice for extension of time to file their Replies to the Appellant’s Petition?”
(iv) Whether the Lower Tribunal was right when it held that the respective Replies of the 1st and 4th Respondents were filed within the time stipulated in the Electoral Act 2010 as Amended?

The 2nd & 3rd Respondents’ brief of argument dated 7th December, 2011 was deemed filed on 4th January, 2012. In it, five (5) issues were articulated for the determination of the appeal. These are:
a. Whether or not the lower Tribunal was right in sustaining the objections of the Respondents as to the incompetence of its witnesses?
b. Whether the tendering of documents without more on the Tribunal did not imply dumping on the Tribunal?
c. Whether the Replies of the Respondents to the petition were validly before the lower Tribunal?
d. Whether or not the Tribunal was right when it refused to strike out the replies of the Respondents who rested its case on that of the petitioner?
e. Whether the lower Tribunal was right when it held that the petition could not be sustained upon severance of the petition?
In the 4th Respondent’s brief of argument dated and filed on 7th November, 2011, the seven (7) issues formulated by the Appellant for the determination of the appeal were duly adopted by the 4th Respondent.
The appeal was heard by this court on 4th January, 2012. On that day, the learned counsel for the Appellant, Chief O.O. Obono-Obla adopted and relied on the Appellant’s brief of argument in urging upon this court to allow the appeal, set aside the judgment of the Tribunal, invoke the provisions of section 16 of the Court of Appeal Act, 2004 and assume the jurisdiction of the Tribunal in the adjudication upon the petition of the Appellant.
The learned counsel for the 1st Respondent, Mr. E.O.E. Ekong adopted and relied on the 1st Respondent’s brief of argument in urging this court to dismiss the appeal as lacking in merit, thereby affirming the decision of the Tribunal.
Mr. Patrick Ekuri is the learned counsel for the 2nd & 3rd Respondents. In urging this Court to dismiss the appeal and affirm the judgment of the Tribunal, he adopted and relied on the 2nd & 3rd Respondents’ brief of argument.
The learned counsel for the 4th Respondent, Mr. F.O. Obeten equally adopted and relied on the 4th Respondent’s brief of argument in urging this Court to dismiss the appeal as lacking in merit and affirm the decision of the Tribunal.
The main grouse of the Appellant in the appeal is that, he was foreclosed by the Tribunal from prosecuting his petition by the exclusion of the statements on oath of all his four (4) witnesses to wit: PW1, PW2, PW3 and PW4. The reason for the exclusion of the said statements was the alleged non-compliance with the provisions of Section 13 of the Oaths Act, 2004. The Appellant is contending that, the petition not having been heard on the merit, he was denied his unalloyed constitutional right to fair hearing in the petition filed by him in the Tribunal. Consequently, this judgment shall be centered on issue number one (1) as formulated by the Appellant’s Counsel in the Appellant’s brief of argument and covered by the first issue in all of the Respondents’ briefs of argument respectively.

I shall therefore go now to consider the issue in the determination of the appeal.
Was the Tribunal right when it sustained the objection of the Respondents to the admissibility (adoption) of the statement on oaths of witnesses called by the Appellant on the ground that these statements did not strictly comply with the provisions of the Oaths Act, 2004; and was the sustainability of the objection by the Tribunal not an infringement on the right of fair hearing?
The learned counsel reiterated that during trial at the Tribunal, the Appellant as PW1 applied to adopt his statement on oath there was an objection by the Respondents that the statement on oath was incompetent because it did not strictly comply with the provisions of Section 13 of the Oaths Act on the ground that paragraph 10 of the statements on Oath was not exactly worded in the form prescribed by the First Schedule of the Oaths Act, for statutory declarations. The statement on oath of PW1 is at page 31 of the Record. It is pertinent to reproduce the said paragraph 10 of the statement on oath of PW1 thus:
That this affidavit is made in good faith conscientiously believing the facts contained herein to be true and correct in accordance with the Oaths Act, 2004.
The Tribunal upheld the objection and marked the statement on oath of PW1 rejected. Despite the action of the Tribunal, the Appellant went ahead and called PW2, PW3 and PW4 to give evidence. There were objections to the admissibility of their statements on oaths as well, by the Respondents on the ground that their statements or depositions also violated Section 13 of the Oaths Act.
The ground of the objections were hinged on the fact that paragraph 39 of the statement on oath of PW2, paragraph 13 of the statement on oath of PW3 and paragraph 5 of the statement on oath of PW4 contravened Section 13 of the Oaths Act.
The averment in paragraph 10 of the statement on oath of PW1 is exactly the same as paragraphs 39 of the statement on oath of PW2, paragraph 13 of the statement on oath of PW3 and paragraph 5 of the statement on oath of PW4. The Tribunal sustained the objection of the Respondents to the statements on oaths of the PW2, PW3 & PW4.The statement on oath of PW2 is at pages 18 to 29, the statement on oath of PW3 is at pages 34 to 35 and the statement on oath of PW4 is at pages 36 to 37 of the record. The Tribunal after taking arguments from both sides held that, the statements failed to strictly comply with the format prescribed in the 1st Schedule to the Oaths Act, sustained the objection and ordered that the statements be marked rejected.
The Tribunal relied on the authority of Obumneke Sylvester (2010) All FWLR (pt. 506) p. 1945 at p. 1961 to hold that, failure to use the exact words or format prescribed by the Oaths Act, in concluding the statements on oath of PW1, PW2, PW3 and PW4 is fatal and rendered the statements inadmissible. In the Obumneke’s case, an objection was taken to the competency of a witness’s statement on oath made by the appellant on the ground that it did not strictly comply with the form prescribed by section 13 of the Oaths Act. The objection was sustained by the Tribunal. On appeal, the Court of Appeal sustained the objection on the ground that the statement on oath of the witness of the appellant did not comply with the provisions of the Oaths Act.
The Appellant’s learned counsel submitted that the decision of the Court of Appeal in Obumneker’s case was per curiam because the attention of the Court was never averted to the fact that the format prescribed in the 1st Schedule to the Oaths Act which the court relied on to arrive at its decisions was not the form in the Oath Act meant for evidence on oath which a witness’s statement actually is. The format the court relied on to arrive at its decision was the format meant for statutory declarations which is not applicable or relevant to oaths meant for written depositions or witness statements on oath as contemplated by paragraph 4 (5) (b) and 41 (1) of the First Schedule to the Electoral Act, 2010 (as amended).
Therefore, he submitted that the authority of Obumneke is not relevant or applicable to the facts and circumstances of this case and is therefore distinguishable. The Tribunal should have taken a liberal disposition rather than a strict and technical one towards the construction and interpretation of the provisions of Section 13 of the Oaths Act in view of the fact that election petitions are sui generis and public policy demands that the law should be interpreted liberally in order for substantial justice to be done to parties.
Learned counsel further submitted that a witness statement contemplated by Paragraphs 4 (5) (b) and 41 (3) of the First Schedule to the Electoral Act does not become evidence but are mere pleadings until the witness enters the witness box, takes another oath, and adopts it. He referred to the case of: Dr. Adekanye v. Controller of Prison (2000) All FWLR (Pt. 8) p. 1258 which is on the point that an affidavit that fails to conform strictly with the provisions of Section 13 of the Oaths Act is competent, in so far as it substantially conforms to the provisions of Section 13 of the Oaths Act. Hence, the Tribunal was wrong to have refused to consider the case of Adekanye on the ground that the subject matter in that case was not an election petition. The Tribunal was bound to consider the authority because it dealt with the Court of Appeal’s construction and interpretation of Section 13 of the Oaths Act vis-a-vis an affidavit that failed to conform with the form prescribed by the Oaths Act. The Tribunal should have leaned towards the side of substantial justice rather than crass legalism aimed at shutting out a party from giving evidence in his case.
The procedural innovation of the Practice Directions for election petitions is in place to expedite the hearing of cases and not to shut out a party from proving his case. The Appellant and his witnesses ought to have been allowed to give their testimonies in proof of the Appellant’s case. The refusal of the Tribunal to allow the Appellant’s witnesses adopt their statements on oath was nothing short of cloistered justice which should not be encouraged in a sensitive matter such as an election petition that should be decided purely on merit. After the witnesses had taken their evidence oath, they had cured whatever defect was apparent in their statements. Undoubtedly the statements on oath of PW1, PW2, PW3 and PW4 substantially conformed to the provisions of the section 13 of the oaths Act. The statements were valid and competent. See the case of: Uduaghan v. Omegara (2010) 11 NWLR (Pt. 1204) p. 168 at p. 194.

The Appellant’s learned counsel opined that the subsequent adoption of written depositions after the witness had been sworn-in in open court to give evidence regularizes the depositions. These statements were properly and regularly sworn to which means there was presumption of regularity.
The Appellant’s learned counsel argued that, the Tribunal was also wrong and in error to have taken the objection of the Respondents at the stage it did, in view of the provisions of Paragraph 12 (5) of the First Schedule to the Electoral Act which provides that 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 side with the substantive petition. The objection of the Respondents was an ambush and a surprise contrived to scuttle the case but masked as an objection on a point of law. The Respondents were obviously desperate to castrate the case of the Appellant.
It is the contention of learned counsel that the Tribunal denied the Appellant fair hearing which is guaranteed by the provisions of Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) by rejecting the statements on oath of the Appellant and his witnesses. The denial of all the Appellant’s witnesses the opportunity to adopt their statements after they had entered the witness box and taken an oath to speak the truth on a purely technical ground has undeniably led to a serious miscarriage of justice.
The submission for the 1st Respondent that the lower Tribunal was right when it rejected the respective Written Statements on oath of the Appellant’s witnesses for non-compliance with the mandatory provision of Section 13 of the Oaths Act. The Tribunal by the doctrine of stare decisis was bound in law to uphold and apply the principles of law enunciated by the Court of Appeal, (Enugu Division) in the case of C.C. Obumneke v. O. Sylvester & Ors (2010) All FWLR (Pt. 506) p. 1945.
It was submitted that, the Tribunal was right in adopting and applying the principle of law stated in Obumneke’s case supra, which was an appeal emanating from an election as against the decision of the Court of Appeal Lagos Division in Dr. F. Adekanye & Ors v. Controller of Prison & Ors. Supra. The aforesaid appeal did not emanate from an election matter and Obumneke’s case supra is later in time. Furthermore, election matters are sui generis and the principles of law enunciated in Adekanye’s case supra are not relevant to the present case.
It is unconscionable for the Appellant’s counsel who neglected to comply with the clear provisions of the Oaths Act to turn round and vilify the lower Tribunal for the consequences of his omission to strictly comply with the mandatory provision of the Oaths Act.
It was the stance of the 1st Respondent that, the Tribunal did not violate the Appellant’s right to fair hearing in the proceedings leading to the present appeal. On the contrary, it is apparent from the records herein that the Appellant and his witnesses were given ample opportunity to establish their case. The rule of fair hearing is not a technical doctrine but one of substance and does not envisage a standard of justice that is biased in favour of one of the parties, but one that enjoins the court to be fair to both parties in a dispute. He relied on this position to the case of Kotoye v. CBN (1989) All NLR p.76. He further argued that, this issue was never raised by the Appellant at the Tribunal; hence the Tribunal did not have any opportunity to deliver a decision on the point, which is now being raised for the first time before this Court. It is the contention of the 1st Respondent that the Appellant cannot properly raise the issue of want of fair hearing without the leave of this Court.
It is trite law that a ground of appeal must be a complaint arising from the decision of the lower court or tribunal as in this case. Consequently, it is the submission for the 1st Respondent that this court should discountenance all arguments pressed by the Appellant in his brief of argument as to want of fair hearing. For, arguments in an appeal cannot be at large but must relate and be confined to the issues formulated from the grounds of appeal which must in turn relate to the ratio decidendi of the judgment appealed against. In this regard, reliance was placed on the case of: VINZ Intl. (Nig) Ltd V. Morohundiya (2009) 11 NWLR (Pt. 1153) p.562.
The submissions of the learned counsel for the 2nd & 3rd Respondents are in tune with those of the other Respondents. He contended that failure of the Appellant and his other three witnesses to conclude their respective sworn statements with the exact words prescribed by Section 13 of the Oaths Act, rendered the statements incompetent.
It was submitted for the 4th Respondent that, compliance with the provisions of Section 13 of the Oaths Act, is compulsory and failure to do so renders the sworn witnesses statements liable to be struck out as this lapse amounts to substantial defect. The Tribunal was therefore right to so hold and resolve this issue in favour of the Respondents.
The learned counsel for the 4th Respondent submitted that the Tribunal was very correct in sustaining the objection against the statements on oath of the Appellant’s witnesses for non-compliance with section 13 of the oaths Act, 2004. For a petition to be valid, it must be accompanied or filed along with written statements on oath of the witnesses that the petitioner intends to call. For such statement to be valid and admitted in evidence, it must comply with the provisions of Section 13 of the Oaths Act. This is because Section 13 of the Oaths Act and Paragraph 4 (5) (b) of the First Schedule to the Electoral Act are mandatory provisions by the use of the words “SHALL” and “MUST”.
Furthermore, learned counsel argued that, in legal jurisprudence, compliance with the provisions of a statute is not a matter of technicality but substantive law. On this point, reliance was placed on the cases of (1) Buhari v. INEC & Ors. (2008) 4 EAC p.111 at p.188; (2) Kwali v. Dobi (2010) All FWLR (Pt. 506) p. 1883 at p. 1903 paras. F – G and (3) Nwankwo v. Yar’Adua (2010) 12 NWLR (pt. 1209) p. 518 at p. 589 paras. B – D. Therefore, non-compliance with these provisions renders not only the written statements on oath liable to be rejected but the petition to which they relate would suffer the fate of an outright dismissal since a petition cannot succeed without the written statements on oath of witnesses as provided by paragraph 4 (5) (b) of the First Schedule to the Electoral Act. He contended that courts are duty bound to give effect to mandatory provisions of a statute. He referred on this point to the cases of: (1) Inakoju v. Adeleke & Ors. (2007) 29 NSCQR p. 958 at p. 1148; (2) Nkeiruka V. Joseph (2009) 5 NWLR (pt. 1135) 505 at p. 525; and (3) Obumneke v. Sylvester & Ors. (supra) at p. 1960 paras. C – D.
It was equally argued in favour of the 4th Respondent that, Section 13 of the Oaths Act is only talking of declarations for affidavits, written statements on oaths and others, which must be complied with and not about the procedure for taking evidence as submitted by the Appellant.
Learned counsel contended that the Appellant cannot complain of not being given a fair hearing because he was given the opportunity to prove his case which he failed to do. The Appellant opened and closed his case during which the written statements on oath of his witnesses were rejected for non-compliance with the provision of the oaths Act. The Appellant was therefore unable to lead oral evidence because of his own fault and not that of the Tribunal.
It was further submitted in favour of the 4th Respondent that the objection as to the defects in the petition and written depositions of the Appellant and his other witnesses were indicated and clearly pleaded in paragraph 41 of the 4th Respondent’s reply to the petition. This is contained in page 185 of the record.
Therein the Appellant was given notice to the effect that the 4th Respondent would contend that there is no legally admissible evidence before the Tribunal to substantiate the various allegations contained in the purported written statements on oath of all the witnesses filed with the petition. It is therefore not true that the Respondents’ objections to the written statements on oath of the witnesses were an ambush and a surprise contrived to scuttle the case of the Appellant.
The main grievance of the Appellant in this appeal is that he was completely foreclosed from the prosecution of his petition by the exclusion of the evidence of the four witnesses he meant to call in proof of his case at the Tribunal, that is, PW1 to PW4. All the Respondents objected to the admissibility in evidence of the said witnesses’ statements on oath on the alleged ground of non-compliance with the provisions of Section 13 of the Oaths Act. The objection was upheld by the Tribunal. The Appellant’s contention in essence is that, his petition not having been heard on the merit, he was denied fair hearing by the Tribunal.
Section 13 of the Oaths Act supra provides that:
It shall be lawful for any Commissioner of Oaths’ Notary Public or any other person authorized by the Act, to administer an oath, to take and receive the declaration of any person voluntarily making the same before him in the form set out in the First Schedule to this Act.
The form of Oath for affidavits as set out in the First Schedule to the Oaths Act reads as follows:
I………..do solemnly and sincerely declare that (set out in numbered paragraphs if more than one matter) and I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of this Oaths Act.
For the purpose of this appeal, paragraph 4(5)(b) of the First Schedule to the Electoral Act, 2010 (as amended) provides that:
(5) The election petition shall be accompanied by –
(a) a list of the witnesses that the petitioner intends to call in proof of the petition;
(b) written statements on oath of the witnesses: and
(c) copies or list of every document to be relied on at the hearing of the petition.”(Underlining supplied for emphasis)
As reiterated above in the submissions of learned counsel for all the parties for and against the appeal, the grievance of all the Respondents during trial was that, the witness depositions of the four witnesses for the Appellant did not strictly comply with the format of oaths for affidavit as set out in the First Schedule to the Oaths Act, which I have already reproduced above in this judgment. The respective alleged offending paragraphs of the witness depositions of the four witnesses for the Appellant are as follows:
For the first witness, paragraph 10 reads thus:
That this Affidavit is made in good faith conscientiously believing the facts contained herein to be true and correct in accordance with the Oaths Act, 2004.
PW2, PW3 and PW4 in paragraphs 9, 13 and 5 respectively of their statements are in parimateria with paragraph 10 of that of the PW1 – see pages 30 to 37 of the record of appeal. Upon due consideration of the objections of all the Respondents to the admissibility of the written statements on oath of PW1 to PW4, the Tribunal upheld the objections and held that, the applicable paragraphs do not contain the words prescribed by section 13 of the oaths Act. That, for that reason the sworn statements are defectice. In pursuance of the holding of the Tribunal, the evidence of all the said witnesses were out rightly disposed off – see pages 627 to 637 of the record of appeal. That marked the end/closure of the Appellant’s case. The Respondents did not call any witness. Thereafter, all the counsel for the parties filed and exchanged written addresses. The Tribunal delivered its judgment in respect thereof on 11th November, 2011 – see pages 598 to 611.
The pertinent poser in this appeal as identified by the Appellant is, could it be said that the Appellant was given the opportunity to present his case at the Tribunal? That is, did he get fair hearing?
I have carefully considered the submissions and the legal authorities relied on by the learned counsel for all the parties herein, as contained in their briefs of argument. The implication of the stance of the Respondents is that non-compliance with the provisions of Section 13 of the Oaths Act equally means non-compliance with the provisions of the Electoral Act, provisions of Paragraph 4(5) (b) of the First Schedule to the Act.
The general position of the law is that, failure of a deponent to comply with the format prescribed in the oaths Act could render an affidavit or any other deposition defective and incompetent.
The Respondents, counsel altogether have reiterated that the provisions of Section 13 of the Oaths Act and paragraph 4(5) (b) of the First Schedule to the Electoral Act are made for the particular purpose of sworn witness statements.
They maintained that it is imperative that the said provisions are complied with to the letter. That the failure of the Appellant to comply with the provisions of Section 13 of the Oaths Act is not a mere technical error that could be glossed over by the Tribunal.
On the other hand, it was submitted for the Appellant that the sworn statements of his witnesses have complied substantially with the provisions of the Oaths Act and that the dismissal of his petition majorly on this point by the Tribunal was based on mere technicality.

Much as I agree that election cases are ‘sui generis’ and should be treated in that realm, it is trite that nonetheless, they are still specie of civil cases. The position of the law is that, at this time and age, the weight of judicial opinion is predominantly in favour of the courts doing substantial justice rather than undue adherence to provisions of the law and technicalities. See the case of: Ogbogboro V. Omenuwoma (2005) 1 NWLR (Pt. 906) p. 16, paragraph H.B Hence, the overriding interest of doing substantial justice to all parties in an action is the preoccupation of the law Courts, Tribunals and Administrative Panels of Enquiries. See also the case of: Ajuwa v. S.P.D.C. (Nig.) Ltd. (2008) 10 NWLR (Pt. 1094) p. 64 at p. 98, Paragraph C.
In the case of: Abubakar & 2 Ors. V. Yar’Adua & 5 Ors. (2008) 1 S.C. (Pt. 11) p. 77 at p. 122, lines 25 to 30, Tobi JSC had the following to say:
I am in entire agreement with the Court of Appeal when the court held that full opportunity should be given to parties in the interest of justice without due regard to technicalities. Gone are the days when courts of law were only concerned with doing technical and abstract justice based on arid legalism. We are now in days when courts of law do substantial justice in the light of the prevailing circumstances of the case. It is my hope that the days of the courts doing technical justice will not surface again, and what is more, election petitions are sui generis and should be treated in that domain or realm.
See also the cases of: Akpan v. Bob (2010) 17 NWLR (pt. 1223) p.421 at pgs. 478 – 479 paras H – C, Mohammad JSC, stated that:
It is helpful to always remember that technical justice is no justice at all and a court of law should distance itself from it. Several decided authorities of this court have laid down that principle of the law. I will only cite one of the recent ones and that is the case of Famfa Oil Ltd. v. Attorney-General of the Federation (2003) 18 NWLR (pt 852) 453 where this court stated:
Courts of law should not be unduly tied down by technicalities particularly where no miscarriage of justice would be occasioned. Justice can only be done in substance and not by impeding it with mere technical procedural irregularity that occasioned no miscarriage of justice. Thus where the facts are glaringly clear, the court should ignore mere technicalities in order to do substantial justice.
In the case of Omoju v. F.R.N. (2008) All FWLR (pt. 415) p. 1615 at p.1671 paras. F – G per Tobi JSC;
Courts of law have long moved away from the domain or terrain of doing technical justice to doing substantial justice. This is because technical justice in reality is not justice but a caricature of it. It is justice in inverted commas and not justice synonymous with the principles of equity and fair play.
Hon. Justice Iguh JSC had the following to say in the case of; Chime & Ors. v. Chime & Ors. (2001) 3 NWLR (pt. 701) p.527 at p. 533 paras. E – F.
I think it is now settled law that in appropriate cases, our courts now appear to be deliberately shifting away from the narrow technical approach to justice which characterized some earlier decisions of courts on various matters. Instead, it now pursues the course of substantial justice. See Consortium M.C. v. NEPA (1992) 6 NWLR (Pt. 246) 132 at 142.
Furthermore on this established principle of the law, in the case of; Amaechi v. I.N.E.C (2008) 5 NWLR (Pt. 1080) p.227 at p.344 paras E – F, Katsina-Alu JSC, restated the stance of the Supreme Court that:
In the interest of justice and fair play this court cannot shy away from doing substantial justice without any undue regard to technicalities. In matters of this nature, this court will not allow technicalities to prevent it from doing substantial justice. See Attorney-General of Bendel State v. Attorney-General of the Federal & Ors (1982) NWLR 116; Patrick Magit v. University of Agriculture Markurdi & Ors (2005) 24 NSC or 143; 19 NWLR (pt. 959) 211.
In the case of Ojibara v. Governor, Kwara State (2005) 1 F.W.L.R. (pt. 243) p. 39 at p. 50, paragraphs E-H and p. 51, paragraphs D-E; Mikailu JCA, referred with approval to the holding of AKINTAN, JCA {as he then was}, in the case of OGUEGBU V. AGOMUO (1999) 1 NWLR (Pt.609) p. 144 at p. 168; that:
The said section 13 of the Oaths Act has undoubtedly been given due consideration by this Court in the case of OGUBGBU V. AGOMUO … where AKINTAN, JCA, in the leading ruling stated as follows:-
I believe that the form prescribed in the 1st schedule is expected to serve as a guide as to the form an acceptable oath within the Provisions of the oath Act should take. The form prescribed, in my view, is not expected to be rigidly followed word for word or letter by letter. I also believe that what is required therefore is to ensure that there is substantial compliance with the requirement of the Act…This is so because I believe that it is not possible to lay down a totally rigid, general principle on the point…. I reiterate that failure of a deponent to comply with the format prescribed in the Oaths Act could render an affidavit defective and incompetent, however, where there is substantial compliance with the provisions of the Oaths Act, as in this case, an affidavit would not be declared incompetent merely because the words prescribed by the Act have not been used word by word.”
See also the case of: Egolum v. Obasanjo (1999) 7 NWLR (pt. 611) p.335 at p.413 paras. C – D per Achike JSC:
This is a matter of discretion. In any event, the errors complained of are purely of technical nature and play no role in relation to the substantiality of the competence of the petition. The heydays of technicality are over because the weight of judicial authorities has today shifted from undue reliance on technicality to doing substantial justice even-handedly to the parties to the case.

I am of the strong view and I hold that in the instant matter, the alleged non-compliance with the provisions of Section 13 of the Oaths Act has to do with only irregularity in the form thereof and not in respect of the substance of the depositions of the four witnesses for the Appellant. I believe that failure to use the exact words prescribed by Section 13 of the Oaths Act will not necessarily render a deposition invalid. Rather, I am of the view that in deciding whether the depositions should be declared invalid, it is necessary to examine the words used with a view to determine if there was in fact a substantial compliance with the requirement of the Act. I am of the opinion that PW1, PW2, PW3 and PW4, by concluding their depositions with the words: “That this Affidavit is made in good faith conscientiously believing the facts contained herein to be true and correct in accordance with the Oaths Act, 2004”, they did not meet the exact wordings prescribed in the Act. However, I believe that there is substantial compliance with the requirement of the Oaths Act, as well as Paragraph 4 (5) (b) of the First Schedule to the Electoral Act. I hold that the objection raised by the Respondents was not enough to justify a total rejection of the sworn statements of the four witnesses for the Appellant. Consequently, I over-rule that objection.
I have no doubt in my mind that if the Tribunal had not declared the sworn statements of the Appellant’s witnesses to be incurably defective, thereby striking them out, it would have come to a conclusion different from the order of dismissal of the petition out rightly. It would not have meted out a technical justice that it did. It can thus be seen that the case of: OBUMNEKE V. SYLVESTER & ORS supra, and the other cases relied upon by the Respondents in their successful bid to defeat the Appellant’s case in the Tribunal, is authority for the proposition that unless a deponent employed the exact words prescribed in Section 13 of the Oaths Act, his/her deposition is defective.
It is the further contention of the Appellant that, because the sworn statements of all the witnesses fielded by him were rejected, he was denied fair hearing. That his petition was not properly heard on its merit. That is, he was not given ample opportunity to present his case. See also the cases of: (1) Abubakar Poly v. Charles Maina (2005) 2 FWLR (pt.258) p.1038 (2) Onyekwuluje v. Benue State Govt. (2005) 2 FWLR (Pt.258) p.1067 at p.1087 paras. F – G;
The law is settled that, a hearing is said to be fair when the adjudicator or panel hears all sides not only as to the main subject of the case but also as to all material issues in the case, before coming to a decision which may be prejudicial to any party in the case. The adjudicator or panel must give equal treatment, opportunity and consideration to all sides. The proceedings must be held in public and all concerned must have access to and be informed of the hearing venue. With respect to every material decision in the case, justice must not only be done but must be manifest and undoubtedly be seen to be done.

In Ndukauba v. Kolomo (2005) 4 NWLR (pt. 915) p.411, the Supreme Court per Oguntade, JSC, identified the following as indices of fair hearing in civil litigation:
i. A party is entitled to counsel of his choice.
ii. A party must be afforded the opportunity to call all necessary witness in support of his case.
iii. A party by himself or counsel must have the opportunity to cross-examine or otherwise challenge the evidence of witnesses called by his adversary.
iv. At the close of the case in accordance with the relevant court rules, a party must have the same right as given to his adversary to offer by his counsel the final address on the law in support of his case.
In the case of Njiokwuemeni V. Ocher (2004) 15 NWLR (Pt.895) p.196, the court also stated the features of fair hearing that the affected parties must be allowed:
i. To be present all through the proceedings, to hear all the evidence against him.
ii. To cross examine or otherwise confront or contradict all the witnesses who testified against him.
iii. To have read to him all the documents tendered in evidence at the hearing.
iv. To have disclosed to him the nature of all relevant material evidence including documentary evidence prejudicial to him, except in recognized exceptions.
v. To know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and
vi. To give evidence by himself, call witnesses, if he likes, and make oral submissions either personally or through the counsel of his choice.

Therefore, where a party has been denied fair hearing, the correctness or otherwise of the decision becomes irrelevant the entire proceedings are a nullity and must be set aside. In the case of: Udo V. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt.732) p.116 at p.151 paras D – E, the court held that: The question is not whether injustice has been done because of lack of fair hearing but whether a party entitled to be heard before deciding had infact been given an opportunity of hearing. Once an appellate court comes to the conclusion that a party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing the decision is liable to be set aside. See also the Ziideeh V. R.S.C.S.C. (2007) 3 NWLR (Pt.1022) p.554 at p.568 paras. C-E Mohammed, JSC stated that:
The right of a person to a fair hearing is so fundamental to our concept of justice that it can neither be waived nor taken away by a statute, whether expressly or by implication. Fair hearing is not only a common law right but also a Constitutional right. Thus by virtue of Section 33(1) of the Constitution of the Federal Republic of Nigeria, 1979, relied upon in the present case, in the determination of his civil rights and obligations, a person is entitled to a fair hearing by a court or other tribunals established by law. The requirement of this provision of the Constitution entails the observance of the twin pillars of the rules of natural justice, namely audi alteram partem and nemo judex in causa sua. See also the cases of: (1) Ntukidem v. Oko (1986) 5 NWLR (Pt.45) p. 909; (2) UNTHMB v. Nnoli (1994) 8 NWLR (Pt.363) p.376 and (3) Bamgboye V. University of Ilorin (1999) 10 NWLR (Pt.622) p.290. In the case of: Effiom V. The State (1995) 1 NWLR (pt.373) p.507, the Supreme Court held that, a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing.
The true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case.
In the case of NEPA V. Eze (2001) 3 NWLR (PT. 701) p.606 at p.618 Para. 1, p.619 paras. A-B; OPENE, JCA, succinctly restated the age-long common law principle of fair hearing in the following words:
The right of fair hearing is entrenched in section 36 (1) of the 1999 Constitution, where a party is entitled to be heard before a decision is given in a case before the court that party should be given an opportunity to be heard and present his case before the court. It is also a cardinal principle of our law that both sides in case should be heard before the Court arrives at its decision.
The fundamental or sacrosanct nature of the right of fair hearing has been fully expounded in the case of Okonkwo V. Okonkwo (1998) 10 NWLR (Pt.571) p.554 at p.550. It was observed as follows: –
The rule of audi alteram partem, the obligation to hear the other side of a party in a dispute to be heard, is so basic and fundamental a principal of our adjudicatory system in the determination disputes that it cannot be compromised on any ground.
A denial of the right of fair hearing completely vitiates the whole trial. It is pertinent to observe that the right of fair hearing is not a technical doctrine, it is one of substance. It therefore follows that where there is a cry of the breach of a right of fair hearing, that, it is the duty of the court to examine the proceedings to ascertain whether there is such a breach.
In the instant matter, I have no doubt in my mind that the throwing away and total rejection of the evidence of all the Appellant’s witnesses by the Tribunal in the way it did is a clear violation of the Appellant’s right to fair hearing. This action of the Tribunal has in my view occasioned miscarriage of justice to the Appellant.
A denial of the right of fair hearing has the effect of vitiating a whole trial. See the case of; (1) NEPA v. EZE, supra, and (2) IDAKWO v. EJIGA (2002) 13 NWLR (Pt.783) p.783. It is my strong opinion and I hold that in the present matter, the evidence of the witnesses of the Appellant was out rightly rejected and not even allowed to be tested. This is a denial of the Appellant’s constitutional and fundamental right to fair hearing. Hence, the Appellant is entitled to have the whole trial in the Tribunal set aside. I hold that the Appellant’s petition was heard and determined by the Tribunal in violation of the principles of fair hearing. The proceedings of the Tribunal are liable to be nullified. See the case of: Gov. of Ekiti State v. Osayomi (2005) 1 FWLR (pt.250) p.75.
In the light of the above stated line of reasoning and conclusions, it becomes utterly unnecessary to consider the remaining issues in this matter. This is because such consideration will amount to an academic exercise.
In the final conclusion, I hold that the appeal is meritorious and it is allowed. The judgment of the Tribunal is accordingly set aside. The Appellant’s petition is hereby remitted to the Tribunal to be heard and determined on the merit by a differently constituted panel.

M.B. DONGBAN-MENSEM, J.C.A.: On the 04/01/2012, this court unanimously agreed and pronounced in terms of Section 285 (8) of the 1999 Constitution, as amended, that the petition be remitted back to the Election Tribunal for a trial on the merit. It fell on the Hon. Justice Omoleye to prepare the lead Judgment stating the reasons for our decision in allowing the appeal. I have nothing useful to add to the lead Judgment. I adopt the consequential orders made in the lead Judgment.

MOOSE A.A. ADUMEIN, J.C.A.: I read in draft the judgment just delivered by my learned brother OMOLEYE, JCA. I agree with His Lordship that this appeal has merit.
It is always in the interest of justice that, as much as practicable, election petitions should be heard and determined on their factual and legal merits. Justice should not be sacrificed on the altar of legal technicalities.
It is for these reasons and the very elaborate and better reasons in the lead judgment that I too allow this appeal.
I abide by all the orders in the lead judgment.

Appearances

Chief O.O. Ogbono-OblaFor Appellant

AND

E.O.E EKONG and I.M. ANANA
Patrick Ekuri & Chris Onugba
F.O. OBETENFor Respondent