ABATAN OLORUNJUWON v. ABIODUN SAMUEL IDOWU & ORS.
(2010)LCN/3889(CA)
In The Court of Appeal of Nigeria
On Monday, the 21st day of June, 2010
CA/I/EPT/HA/75/2008
RATIO
DUTY OF THE COURT A SUBPOENA TO PRODUCE A DOCUMENT OR TO GIVE EVIDENCE IS NOT COMPLIED
The law is already trite, that where a subpoena is issued to produce a document, or to give evidence, the failure to do so, is not a subject of adverse finding by the Court. The proper step to be taken by the Court in accordance with the law, is to issue a committal warrant for disobedience of the subpoena …………………” See:- Buhari v. Obasanjo (2005) 13 NWLR (pt.941) 1. PER SIDI DAUDA BAGE, J.C.A.
DUTY OF THE COURT WITH RESPECT TO ADMISSIBILITY OF PIECES OF EVIDENCE
The law is that, admissibility of a piece of evidence is one thing, whereas its cogency or probative value is quite another. For admissibility, the Court has to consider all the rules of exclusion and decide whether there are any grounds for which the court cannot look at the evidence at all. On the other hand, once the evidence has been admitted, the court will then consider what weight to attach to it. what it proves in the con of the issues in controversy between the parties. See:- Rapheal Udeze v. Paul Chidebe & Ors. (1990) 1 NWLR (Pt.125) 141 at 160; Ipinlaiye II v. Olukotun & Ors. (1996) 39 LRCN 1023 At Pages 1041 -1042; Akere v. Adesanya (1993( 4 NWLR (pt.288) 484; Alhaji Buba Usman v. Mohammed T. Garke (1999) 1 NWLR (pt.587) 466 at 488; Frida U. Abalogu v. The Shell Petroleum Development Company of Nigeria Limited (1999) 8 NWLR (Part &13) 12 At 20. PER SIDI DAUDA BAGE, J.C.A.
PRACTICE DIRECTION: PURPOSE OF THE PRACTICE DIRECTION
There can be no gain saying the fact that, the purpose of the Practice Direction is to complement the provisions of the Electoral Act by enhancing and facilitating the expeditious hearing of election petitions. Its purpose is to guide and regulate compliance with and observance of the provisions of the First Schedule to the Act and the Federal High Court Rules where applicable. See:- Adams v. Umer (2009) 5 NWLR (Pt.1133) 41 At 107-108 E-C: Yusuf v. Obasanjo (2003) 9-10 SC 53. PER SIDI DAUDA BAGE, J.C.A.
DUTY OF THE COURT TO DO SUBSTANTIAL JUSTICE BETWEEN THE PARTIES
The basic principle of law is that, rules of Court are meant to be obeyed. However, in the implementation of rules of procedure or practice directions, the paramount consideration of the Court is to do substantial justice between the parties. A Court should not in the process allow strict adherence to technicalities becloud its sacred duty to do substantial justice. At the end of the day, an impartial bystander should be satisfied that justice has been done to all the parties in the matter. See:- Abubakar v. Yar’Adua (2008) 1 SC (pt.11) 77 at 122 Lines 1-7; Oni v. Fayemi (2008) 8 NWLR (pt.1089) 400 at 443 C-E and 451 – 452 G-B. PER SIDI DAUDA BAGE, J.C.A.
JUSTICES
STANLY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
ABATAN OLORUNJUWON Appellant(s)
AND
ABIODUN SAMUEL IDOWU & 69 OTHERS Respondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment) This is an appeal against the Judgment of the Governorship and Legislative House Election Petition Tribunal holden at Osogbo (hereinafter referred to as “the Tribunal”) delivered on the 14th day of March, 2008.
On the 14th of April, 2007, elections were held into the Osun State House of Assembly for Ifedayo Constituency. The Appellant contested the election on the platform of the Action Congress (A.C.) while the 1st Respondent contested on the platform of People’s Democratic Party (P.D.P.). At the conclusion of the election, the 3rd and 4th Respondents returned the 1st Respondent as the winner. The Appellant was dissatisfied with the return of the 1st Respondent and filed a petition before the Tribunal challenging the said return on the ground, inter alia, that the election was characterized by numerous electoral malpractices, irregularities and non-compliance with the provisions of the Electoral Act, 2006. He sought for a declaration that the election was invalid and therefore vitiated by reason of non-compliance with the Electoral Act, an order nullifying the elections, and an order directing the 3rd Respondent to conduct fresh elections for the said constituency.
The parties duly filed and exchanged pleadings. Witness statements on oath and list of documents to be relied upon at the hearing in compliance with the Practice Directions, 2007. After the conclusion of the pre-hearing session, the matter proceeded to trial. The Appellant called five (5) witnesses and tendered various documents through them. The 1st and 2nd Respondents also called five (5) witnesses. The 3rd to 68th Respondents (INEC at its officials) and the 69th and 70th Respondents (the land enforcement agents) did not call any witness. At the conclusion of the trial, the parties filed and exchanged written addresses. In a considered judgment delivered on the 14th of March, 2008, the Tribunal dismissed the petition.
The Appellant being dissatisfied with the decision, filed a Notice of Appeal dated 2nd day of May, 2008 containing eleven (11) grounds of appeal. The Appellant, 1st and 2nd Respondents and the 69th and 70th Respondents filed and exchanged their respective Briefs of Argument. The 3rd to 68th Respondents did not file any Brief. Ajibola Basiru, Esquire, learned Counsel to the Appellant, adopted and relied on the Appellant’s Brief of Argument dated 18th day of August, 2008 and filed same day and the Reply Brief to the 1st and 2nd Respondents dated and filed 22nd February, 2010. Tewo Lamuye, Esquire adopted and relied on the 1st and 2nd Respondents’ Brief dated 14th January, 2010, filed on the 14th January, 2010, but deemed properly filed on the 23rd February, 2010. Mr. Nureni Okunlola, Senior State Counsel, Ministry of Justice, Osun State, adopted and relied on the 69th and 70th Respondents’ Brief of Argument dated and filed the 3rd February, 2010. While the Appellant in adopting his Brief, had urged the Court to allow appeal; all the Respondents after adopting their respective Briefs, had urged the Court to dismiss the appeal.
From the eleven (11) grounds of appeal contained in the Notice of Appeal, the Appellant formulated six (6) Issues for determination thus:-
(1) “Whether the Tribunal was right in its Ruling of September 19th, 2007 when it ruled that witnesses subpoened ad testificandum could not testify because their written statements on oath did not accompany the petition at time of its presentation. (Ground 7 of the Notice of Appeal).
(2) Whether the Tribunal was right in its Ruling of December 11th, 2007 when it dismissed the Petitioner/Appellant’s application to enable him bring additional witness and tender inspection report which application was necessitated by an inspection order granted by Tribunal, pursuant to Section 159 of the Electoral Act, 2006. (Grounds 8, 9,10 and 11).
(3) Whether the Tribunal did not err in law in holding that the allegations that elections were inconclusive, votes were not counted, results were not announced at the polling units, etc, border on criminal conduct and must be proved beyond reasonable doubt. (Ground 1 of the Notice of Appeal).
(4) Whether the Tribunal gave adequate consideration to the evidence adduced before it in arriving at its judgment when it rejected the evidence of PW1-PW5 and characterized same as hearsay evidence while ascribing probative value to the discredited evidence of DW1-DW5. (Grounds 2, 3 and 5 of the Notice of Appeal).
(5) Whether by Sections 46 (1), 62, 63 and 64 (1) and (2) of the Electoral Act 2006 evidence of what transpired or polling units can only be given by polling agents thereby rendering the testimonies of persons not mentioned in the stated provisions of the Electoral Act, 2006 hearsay evidence. (Ground 4 of the Notice of Appeal).
(6) Whether the Tribunal was right in holding that the Appellant, pleadings in respect of wards 3, 6, 8, 9 and 10 had been abandoned when the Tribunal admitted documentary evidence tendered by the Appellant but wrongfully prevented the Appellant from leading evidence in respect thereof. (Ground 6).
The 1st and 2nd Respondents formulated the following Issues for determination thus:-
(1) “Whether the lower Tribunal did not adopt the correct or proper approach in the assessment and evaluation of the pieces of evidence proffered by the parties vis a vis their pleadings in arriving at its decision. (Grounds 1, 2, 3, 4, 5 and 6).
(2) Whether the lower Tribunal was right in disallowing persons who were not listed as witnesses and whose written statement on oath are not before the Tribunal to be sworn to testify and/or to be called as additional witnesses.
(Grounds 7, 8, 9, 10 and 11)”.
The 69th and 70th Respondents formulated a single Issue for determination thus:-
“Whether by the evidence adduced before the Tribunal, the Petitioner was able to prove the alleged acts of election malpractices, irregularities, violence and thuggery. (Grounds 1, 2 and 3 of the Notice of Appeal)”.
I shall now proceed to consider the merits of the appeal.
Having considered the Issues formulated by the parties, I am of the view that the Issues formulated by the Appellant are adequate to dispose of the appeal. I shall consider issues 1 and 2 when raise the issue of fair hearing together.
Issues One (1) and Two (2):-
Learned Counsel to the Appellant submitted on the 1st Issue that, notwithstanding the fact that the Tribunal issued five (5) subpoena adduced before the Tribunal, the Petitioner was able to prove the alleged acts of election malpractices, irregularities, violence and thuggery (Grounds 1, 2, and 3 of the Notice of Appeal).
I shall now proceed to consider the merits of the appeal. Having considered the Issues formulated by the parties, I am of the view that subpoena duces tecum ad testificandum all dated 11th of September, 2007, it disallowed the five witnesses summoned to wit: Abegunde Michael (ward 9), Abolarin Rasheed (ward 8), Adeniyi Taiwo (ward 3), Ogunkayode Johnson (ward 10) and Oni Adeyeye (ward 6) from giving evidence for the Appellant on the ground that the Appellant did not file their respective witnesses statements along with the petition. He referred to paragraph 50 of the First Schedule to the Electoral Act which provides that recourse may be had to the practice and procedure in the Federal High Court. He submitted that, in the absence of any provision for the issuance of subpoena duces tecum ad testificandum under the Electoral Act, the provisions of Order 41 Rule 27 of the Federal High Court Rules are applicable. He argued that, the Practice Direction that requires the filing of witness statements along with the petition cannot defeat the clear provisions of the Federal High Court Rules by fettering the exercise of discretion by the court. He relied on University of Lagos v. Aigoro (1985) 1 NWLR (pt.143) 143. He submitted that, the Tribunal was wrong to have relied on the Practice Direction to void a process permitted by the rules of court. He argued, if the Tribunal had properly considered the object of a subpoena, it would appreciated the fact that a witness on subpoena is obliged by the terms thereof to present himself in court to give evidence and not to go to a solicitor’s office for the purpose of drafting and deposing to a witness statement. He submitted that, the Tribunal ought to have considered the fact that, the five witnesses summoned via a subpoena duces tecum ad testificandum were summoned to give evidence of what they saw in the various wards they worked, by denying the Appellant the opportunity of examining the witnesses on the irregular conduct of the election, the Tribunal disallowed evidence vital to sustaining the Appellant’s petition.
In reaction to the first issue, learned Counsel for the 1st and 2nd Respondents referred to Paragraph 6 (1), (2) and (3) of the Practice Direction and submitted that, the Tribunal has the discretion to determine whether or not an applicant seeking to move an application outside the pre-hearing session, has shown exceptional or extreme circumstances to warrant the grant of the application. He further argued that, in the exercise of discretion, no one can be authority for another. He cited the case of Yesufa Vs. Ilori (2008) 6 NWLR (Part 1083) 333 At 340. Learned Counsel submitted that, at the time of preparing the petition, the Appellant ought to have known that he would require the evidence of these witnesses. That the names of these witnesses ought to have been stated in the list of witnesses and frontloaded and the fact their evidence would be required. He was of the view that the failure to frontload their evidence had the effect of springing a surprise on the Respondents. He contended that, this would be in breach of the mandatory provisions of paragraph 1 of the Practice Direction. He referred to:- Buhari Vs. INEC (2008) 14 NWLR (Part 1078) 546. He argued that the fact that, the Tribunal made an order summoning the witnesses, but disagreed with the Appellant’s contention that, it ought to know their evidence would be required by the Appellant to maintain his petition. He submitted further that, the Practice Direction must be obeyed and that a litigant is not at liberty to pick and choose which aspect to comply with.
Learned Counsel submitted that, in the instant case granting the application to call additional would have had the effect of amending the petition through the back door by introducing fresh fact and issues, would have taken the respondents by surprise by over-reading them, would have radically changed the character of the petition and would have wasted the time of the Tribunal if other parties were to reply to the new issues by amending their processes. On the special nature of election petition proceedings and the need for expeditious hearing, he referred to:- Ahmed Jiddah v. Kallah (1994) 4 NWLR (pt.599) 426 at 433; Aregbesola v. Oyinlola in Appeal No. CA/I/EPT/GOV/31/2008. He submitted that, where the Electoral Act and/or Practice Direction has set down a procedure to obtain a hearing, a party acts at his peril if he fail to comply and cannot be head to complain of lack of fair hearing. He referred to MMS Ltd. v. Oteju (2005) 14 NWLR (pt.945) 517 at 543.
Learned Counsel submitted further that, election petition being sui generic, the provisions of Section 77 and 155 of the Evidence Act cannot be read in isolation of provisions of the Electoral Act, 2006. The said section must be read in conjunction with Section 46, 62 (1), (3) and Section 4 (1) & (2) of the Electoral Act, 2006. A holistic and community reading of these Sections 77 and 155 of the Evidence Act with Sections 46, 62 (1), 63 64 (1) & (2) of the Electoral Act, 2006 will reveal that, PW1 -PW5 are legally incompetent to testify before the Tribunal as to what transpired in any of the polling units, because of the exclusion Clause in Section 62 (1) of the Electoral Act, 2006, which is an absolute enactment. In all ramifications, the conduct of the Appellant’s ward supervisors (PW1-PW5) are illegal and therefore void ab initio.
The 69th and 70th Respondents did not address Issue 1 in their Brief.
The subpoena ad testificandum issued on the PW1-PW5 are contained in pages 145-150 of the record. The subpoenas all dated 11th September, 2007, were all signed by the Chairman of the Tribunal. The content of all the subpoenas, made in Form 39 (Order 40 Rule 34) is as follows:-
“You are commanded in the name of the President and Commander-in-Chief of the Armed Forces to attend before this Tribunal at Osogbo on Wednesday, the 12th day of September, 2007, at 9 O’clock in the forenoon and so from day to day, to give the evidence in the above named cause.”
On the command of the subpoena stated above, PW1-PW5 appeared before the Tribunal. The Tribunal, on its own, suo motu disallowed the witnesses from giving evidence before it on the ground that, the Appellant did not file their respective witnesses’ statements along with the petition. In doing so, the Tribunal sought reliance on paragraphs 1 (1) o the Practice Direction.
Paragraph 1 (1) of the Practice Direction provides:-
“1. (1) All petitions to be presented before the Tribunal or Court shall be accompanied by:-
(a) List of all 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.
From the record at pages 133-134, the Petitioner filed his answers to questions raised in pre-hearing information sheet on the 2nd day of August, 2007. The 1st and 2nd Respondents also filed theirs on the 2nd day of August, 2007 at pages 138-139 of the record, while the 69th and 70th Respondents filed theirs on the 6th August, 2007 at pages 138-139 of the record. The main hearing of the petition by the Tribunal commenced on 7th of September, 2007 at page 140 of the record with one Raufu Babatunde as PW1. Thereafter at page 145 of the record, on the 11th of September, 2007, the Tribunal approved the issuance of the subpoena on the five (5) witnesses. A fact that is not dispute is that, the subpoena order was made after the time prescribed by Section 141 of the Electoral Act for presenting a petition (duly frontloaded as required by paragraph 1 (1) of the Practice Direction) had elapsed. The order was granted as clearly stated in the subpoena to give evidence. By the Tribunal turning around to disallow the witnesses it commanded to appear before it, to give evidence, clearly negates the right to fair hearing.
The law is already trite, that where a subpoena is issued to produce a document, or to give evidence, the failure to do so, is not a subject of adverse finding by the Court. The proper step to be taken by the Court in accordance with the law, is to issue a committal warrant for disobedience of the subpoena …………………”
See:- Buhari v. Obasanjo (2005) 13 NWLR (pt.941) 1.
The subpoened witnesses in obedience to the subpoena appeared before the Tribunal. It was incumbent on the part of the Tribunal to allow them heard, after hearing from them as commanded by the subpoena; the Tribunal can then decide on the cogency or probative value to attach to their evidence. The law is that, admissibility of a piece of evidence is one thing, whereas its cogency or probative value is quite another. For admissibility, the Court has to consider all the rules of exclusion and decide whether there are any grounds for which the court cannot look at the evidence at all.
On the other hand, once the evidence has been admitted, the court will then consider what weight to attach to it. what it proves in the con of the issues in controversy between the parties. See:- Rapheal Udeze v. Paul Chidebe & Ors. (1990) 1 NWLR (Pt.125) 141 at 160; Ipinlaiye II v. Olukotun & Ors. (1996) 39 LRCN 1023 At Pages 1041 -1042; Akere v. Adesanya (1993( 4 NWLR (pt.288) 484; Alhaji Buba Usman v. Mohammed T. Garke (1999) 1 NWLR (pt.587) 466 at 488; Frida U. Abalogu v. The Shell Petroleum Development Company of Nigeria Limited (1999) 8 NWLR (Part &13) 12 At 20.
I have no doubt in my mind that, the refusal of the Tribunal even to hear those witnesses subpoened that appeared before it, is in direct conflict with the Appellant’s constitutional right to fair hearing as guaranteed by Section 36 of the 1999 Constitution. I do not therefore agree with the Tribunal in its interpretation of the Practice Direction to have the subpoened witnesses sworn to give evidence, such witnesses should have been listed among the Petitioner/Appellant’s witnesses.
I am however in agreement with the submission of the learned Counsel to the Appellant that, the applicability of subpoena is by virtue of the combined effect of the Federal High Court (Civil Procedure) Rules, 2000 and Paragraph 50 of the First Schedule to the Electoral Act, 2006 and there is no basis to interpose the provision of the Practice Direction relied upon by the Tribunal. See:- Auto Import & Export Vs. Adebayo (2007) 18 NWLR (Part 799) 554 At 580.
On the whole therefore, the refusal to hear the five (5) witnesses subpoened by the Tribunal, is a denial of fair hearing on the Appellant; and Issue 1 is resolved in favour of the Appellant.
On Issue No. Two (2):
I support of the 2nd Issue. Mr. Basiru, learned Counsel to the Appellant, argued that, on 14/7/07, the Tribunal granted the Appellant’s application for an order directing the 3rd and 4th Respondents (i.e., INEC and the Resident Electoral Commissioner, Osun State), to make available to the Appellant’s Solicitor and/or its appointed agents for inspection of all documents, ballot papers and other electoral materials in their custody used for the conduct of the election, “for the purpose of enabling the Appellant to maintain his petition against the Respondents. He stated that, the inspection was duly carried out and a report compiled. He stated further, having compiled the report, the Appellant by an application, sought for an order granting leave to call Adeola Olayiwola as an additional witness, file his witness’ statement and file the report which he prepared. He stated that, the application was refused by the Tribunal sequel to its Ruling dated 11th December, 2007, on the ground that, the Appellant failed to show exceptional circumstances to warrant the grant of the application.
Relying on paragraph 6 (1), (2) and (3) of the Practice Direction and the combined effect of paragraph 4 (5) and (6) thereof, he submitted that, once an applicant is able to show exceptional circumstances, an application to file an inspection report ought to be granted. Learned Counsel submitted that, by section 141 of the Electoral Act, 2006, an election petition must be filed within 30 days from the date of declaration of results. He submitted that, by paragraph 1 (1) of the Election Tribunal and Court Practice Direction, 2007, a petition must be accompanied by the witness statements. The list of witnesses and the list of documents to be relied upon at trial. He noted that, having filed an application, pursuant to section 159 of the Electoral Act, for the purpose of maintaining the petition, after the 3rd days specified for filing witness statements had expired; and which application was duly granted, the Tribunal ought to have know that, in order to achieve the objective of the order, it would have been necessary for the person who participated in the inspection and prepared the report to testify and tender the report. He argued that it was impossible to expect the witness statement to have been filed within 30 days required by the Practice Direction when the order for inspection was made after the time had expired. Learned Counsel submitted that, as a matter it would have thus been speculative for an application to have been brought without material upon which the application will be predicated. See:- Williams v. Hope Rising Voluntary Fund Society (1992) NSCC Page 36.
Learned Counsel submitted further that, the Tribunal ought to have granted leave sought in the application in order to give effect to the aforesaid order of the Tribunal as well as the spirit and intendment of Section 159 of the Electoral Act and Section 36 of the 1999 Constitution. Besides paragraph 43 of the First Schedule to the Electoral Act, 2006, gives a Tribunal the power, subject to the provisions of Section 141 of the Electoral Act and Paragraph 14 of this schedule, to enlarge time for doing any act or taking any proceedings on such terms (if any) as the justice of the case may require. See:- Boni Haruna v. Modibbo (2006) 2 EPR 664. Also, Audu v. Guta (2004) 4 NWLR (pt.864) 463 at 882 D-H, 488 Paragraphs A-D.
In reaction to this submission, learned Counsel for the 1st and 2nd Respondents referred to paragraph 6(1), (2) and (3) of the Practice Direction and submitted that, the Tribunal has a discretion to determine whether or not an applicant seeking to move an application outside the pre-hearing session has shown exceptional or extreme circumstance to warrant the grant of the application. He argued that, the exercise of discretion no case can be authority for another. He cited the case of Yesufu v. Ilori (2008) 6 NWLR (pt.1083) 333 at 340. Learned Counsel submitted that, at the time of preparing the petition, the Appellant ought to have known that he would conduct an inspect of electoral materials and tender the reports through a witness.
That the name of the witness ought to have been stated in the list of witnesses and frontloaded and the fact that the inspection report would be tendered referred to. He was of the view that, the failure to frontload the information had the effect of springing a surprise on the Respondents. He contended that, this would be in breach of the mandatory provisions of paragraph 1 of the Practice Direction. He referred to:- Buhari v. INEC (2008) 4 NWLR (pt.1078) 546. He argued that, the fact that the Tribunal made an order authorizing the inspection of electoral materials does not ipso facto mean that, the Tribunal is bound to grant an application to call additional witnesses. He argued that, the Appellant could make use of the information gathered during the inspection through the witnesses already listed and whose statements before the Tribunal already contained allegation of various acts of electoral malpractices. He disagreed with the Appellant’s contention that the Tribunal is granting the order of inspection ought to have known that it would be necessary to call a witness who participated in the inspection to tender the report.
He submitted that, the Practice Direction must be obeyed and that a litigant is not at liberty to pick and choose which aspect to comply with.
Learned Counsel submitted that, in the instant case, granting the application to call additional witnesses, would have had the effect of amending the petition through the back door by introducing fresh facts and issues; would have taken the Respondents by surprise by overreaching them; would have radically changed the character of the petition and would have wasted the time of the Tribunal if the other parties were to reply to the new issues by amending their processes. On special nature of election petition proceedings and the need for expeditious hearing, he referred to:- Ahmed Jiddah v. Kallah (1994) 4 NWLR (pt.599) 4 26 at 433; Aregbesola v. Oyinlola in Appeal No. CA/I/EPT/GOV/31/2008. He submitted that where the Electoral Act and/or Practice Direction has set down a procedure to obtain a hearing, a party acts at his peril if he fails to comply and cannot be heard to complain of lack of fair hearing. He referred to MMS Ltd. v. Oteju (2005) 14 NWLR (pt.945) 517 at 543.
The 69th and 70th Respondents did not address Issue Two (2) in their Brief.
The Appellant’s application for an order of inspection was granted by the Tribunal on the 14th day of July, 2007 as can be found at pages 166-199A of the record. The order granted was for inspection of electoral materials brought pursuant to Section 159 (1) & (2) of the Electoral Act, 2006, Section 285 (2) of the 1999 Constitution and under the inherent jurisdiction of the honourable Tribunal. The application was not opposed by counsel representing the different sets of Respondents.
Section 159 (1) of the Electoral Act under which the application was brought provides:-
“(1) An order for an inspection of a polling document, or an inspection of a document, or any other packet in the custody of the Chief National Electoral Commissioner, or any other officer of the Commission, may be made by the Election Tribunal or the Court, if it is satisfied that, the order required is for the purpose of instituting or maintaining an election petition.”
It is significant that the order granted on the 14/7/2007 was after the time for instituting the petition had elapsed. The order sought was clearly not for the purpose of instituting the petition.
It follows therefore that, in granting the order, the Tribunal accepted the averments in the affidavit in support and was satisfied that it was required for the purpose of maintaining the petition already filed.
Pursuant to that order, the Appellant carried out the inspection and a report was produced. By his motion on notice dated 22/11/07 (at pages 166-169 of the record), the Appellant sought for the following reliefs:-
(1) “Leave and order of this honourable Tribunal permitting the Petitioner to bring the application outside the pre-hearing session;
(2) Leave and order of this honourable Tribunal permitting the Petitioner to call Adeola Olayiwola as additional witness and to file written deposition of the said Adeola Olayiwola;
(3) Leave and order of this honourable Tribunal permitting the Petitioner to file the report of Adeola Olayiwola;
And for such further or other order(s) as the Court may deem fit to make in the circumstances.”
The application was supported by a 18 paragraphs affidavit.
The 1st and 2nd Respondents and the 69th and 70th Respondents filed Counter-affidavits in which they contended that the grant of the application would be prejudiced to them, because, the proposed witness statement was not frontloaded as required by paragraph 1 (1) of the Practice Direction and that the grant of the application would “open the floodgates for endless litigation” as they may have to file similar applications. All the parties filed written submissions in respect of their positions. In a considered Ruling delivered on the 11/12/2007, the Tribunal refused the application on the ground that “the Petitioner did not at the pre-hearing session indicate that, he will bring an application of this nature; and from the processes filed, no extreme circumstances has been shown to warrant the grant of the leave sought.
Furthermore, the grant of the application would run contrary to paragraph 1 (1) of the Practice Directions.”
Paragraph 6 (1) of the Election Tribunal and Court’s Practice Directions, 2007 provides:-
“6 (1) No motion shall be moved. All motions shall come up at the pre-hearing session, except in extreme circumstances with leave of the Tribunal.”
Paragraph 4 (5) and (6) of the Practice Directions provides :-
4 “(5″) The Tribunal or Court may at, or before the hearing of a petition, order or direct that evidence of any particular fact be given at the hearing in such manner as may be specified by the order or direction.”
The power conferred by sub-paragraph 5 of this paragraph extends in particular to ordering or directing that evidence of any particular fact be given at the trial :-
(a) by statement on oath of information or belief, or
(b) by the production of documents or entries in books, or
(c) by copies of documents or entries in books; or
(d) in the case of a fact which is of common knowledge either generally or in particular district by the production of a specified newspaper which contains a statement of that fact.”
The above provisions empower the Tribunal to grant order sought if it is satisfied that the Applicant has disclosed exceptional distances to warrant its grant outside the pre-hearing session. The main issue in contention here is what constitutes exceptional circumstances? Learned Counsel for the Respondents contended at the lower Tribunal, and indeed the Tribunal in its Ruling held that the application could not be granted because, the petition was not frontloaded with the statement of the witnesses pursuant to paragraph 1 (1) of the Practice Direction.
There can be no gain saying the fact that, the purpose of the Practice Direction is to complement the provisions of the Electoral Act by enhancing and facilitating the expeditious hearing of election petitions. Its purpose is to guide and regulate compliance with and observance of the provisions of the First Schedule to the Act and the Federal High Court Rules where applicable. See:- Adams v. Umer (2009) 5 NWLR (Pt.1133) 41 At 107-108 E-C: Yusuf v. Obasanjo (2003) 9-10 SC 53.
The basic principle of law is that, rules of Court are meant to be obeyed. However, in the implementation of rules of procedure or practice directions, the paramount consideration of the Court is to do substantial justice between the parties. A Court should not in the process allow strict adherence to technicalities becloud its sacred duty to do substantial justice. At the end of the day, an impartial bystander should be satisfied that justice has been done to all the parties in the matter. See:- Abubakar v. Yar’Adua (2008) 1 SC (pt.11) 77 at 122 Lines 1-7; Oni v. Fayemi (2008) 8 NWLR (pt.1089) 400 at 443 C-E and 451 – 452 G-B.
Paragraph 1 (1) of the Practice Direction provides:-
“1. (1) All petitions to be presented before the Tribunal or Court shall be accompanied by:-
(a) list of all 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.”
Now the question is whether the Appellant, in the circumstances of this case, could have frontloaded the additional witness statement sought to be filed. A fact that is not in dispute is that, the order for inspection of documents was made after the time prescribed by Section 141 of the Electoral Act for presenting a petition (duly frontloaded as required by paragraph 1 (1) of the Practice Direction) had elapsed. The order was granted for the purpose of Enabling the Appellant to maintain his petition. There is no objection to the order being granted. In paragraphs 8, 9 and 12 of the affidavit in support of the application dated 22/11/2007, it was averred thus:-
8. “That the evidence in respect of which the additional witnesses are being called and the witness statement being filed relates evidence discovered pursuant to the aforesaid order of the Tribunal and was not available at the time of presentation of the petition. That the report of the inspection to be tendered by the said additional witness via Adeola Olayiwola is hereby attached as Exhibit “A2”.
9. “That the report of the findings on physical inspection of the ballot papers and other Electoral materials was recently completed on the November 15, 2007, due to the volume of materials involved.”
12. “As a Legal Practitioner, I know that, the purport of the aforesaid order of this honourable Tribunal is to enable the Petitioner to obtain evidence for the purpose of maintaining the petition which evidence were unavailable at the time of presentation of the petition and making of the order.”
The proposed witness statement and inspection report were duly annexed thereto. It seems to me that, the above averments disclosed exceptional circumstances to warrant the exercise of the Court’s discretion in favour of the Applicant. It would be unreasonable in my view to expect the Appellant to frontload a witness statement in respect of an order yet to be obtained and in respect of a report yet to be compiled. The Practice Direction should not be interpreted in such a manner that would lead to absurdity. The 1st and 2nd Respondents have argued that, the Appellant ought to have indicated at the pre-hearing session that he intended to file an application to call this witness as an additional witness and tender the inspection reports. With due respect to the learned Counsel, whether or not the Appellant would need to tender a report of the inspection or call a witness in respect thereof would depend on the outcome of the inspection. This is borne out by paragraphs 5 and 6 of the supporting affidavit at pages 168 and 169 of the record, wherein it was averred as follows:-
5. “That in the course of carrying out inspection, the Petitioner discovered there was need to further carry out forensic inspection of the electoral materials and particularly for the ballot papers to be scanned electronically for forensic analysis with a view to verifying multiple thumb-printing of the ballot papers.”
6. ‘That in carrying out the aforesaid order of the Tribunal, the Petitioner vide his experts, carried out both physical and forensic examinations and inspections of the ballot papers and other electoral materials used for the election and in that behalf the Petitioner desire to bring the evidence of the findings of both physical and forensic examinations and inspections of the ballot papers and other electoral materials before the Tribunal by way of calling additional witness.”
In granting the order for inspection, the Tribunal granted the request of 1st and 2nd Respondents that they be present during the inspection. They could not therefore contend that, the calling of the additional witness or tendering of the inspection report would take them by surprise, or would be prejudicial to them.
Having granted the application for inspection “for the purpose of maintaining the petition”, it amounted to shutting the Appellant out when the Tribunal refused to allow him to file the written deposition of the person who participated in the inspection and to file his report in respect of said inspection. This is particularly so, having regard to the fact that, the grounds of the petition include allegations that the election was characterized by various electoral malpractices including ballot box stuffing, illegal thumb-printing, multiple voting, lack of accreditation of voters in several polling units and voting without accreditation among others.
See:- Supreme Court in Abubakar Vs. Yar’Adua (Supra) At 122 Lines 23-29. In that case, the Supreme Court affirmed the decision of Court of Appeal granting leave to the Applicants to call 213 additional witnesses and to file their witnesses’ statements.
I hold that the lower Tribunal wrongly exercised its discretion in refusing to grant the application and thereby denied the Appellant his right to fair hearing guaranteed by Section 36 (1) of the 1999 Constitution.
Having resolved Issues 1 and 2 in favour of the Appellant and found-that the trial was vitiated for lack of fair hearing, it is not necessary to consider the remaining Issues raised in this appeal. In conclusion, the appeal succeeds. I accordingly allow it. The Judgment of the Governorship and Legislative Houses Election petition Tribunal, sitting at Osogbo, in Petition No. HA/EPT/OS/15/2007, delivered on 14th March, 2008, is hereby set aside for lack of fair hearing. It is hereby ordered that, the President of Court of Appeal shall constitute a fresh panel of Osun State Governorship and Legislative House Election Tribunal to hear the petition de novo.
No Costs awarded in this appeal
STANLEY SHENKO ALAGOA, J.C.A.: I read before now the judgment just delivered by my brother Sidi Dauda Bage (JCA) and I entirely agree with him that where there is absence of fair hearing the whole proceedings are a nullity. This is the position in this case. I also allow the appeal for this reason and set aside the judgment of the tribunal below. The President of the Court of Appeal is to constitute a fresh Election Petition Tribunal to hear the petition afresh. Parties are
to bear their own costs.
MODUPE FASANMI, J.C.A.: I have had the advantage of reading the Judgment of my learned brother S. D. Bage J.CA in this appeal. The issues have been comprehensively and adequately dealt with. I agree with the reasoning’s and conclusions reached therein. The appeal is meritorious and I allow it. I also abide by the consequential orders made.
Appearances
Kunle Adegoke with him are Tope Alabi and I. W. Adepeju.For Appellant
AND
A. Moronkeji, with him are Oluwole Kupoluyi for the 1st and 2nd Respondents
Nureni Okunlola, Senior State Counsel, Ministry of Justice, Osun State for the 69th and 70th RespondentsFor Respondent
