ABUBAKAR N. MOHAMMED & ANOR. V. CHRISTOPHER DAJAN & ORS.
(2010)LCN/3677(CA)
In The Court of Appeal of Nigeria
On Thursday, the 1st day of April, 2010
CA/J/EP/HA/282/2009
RATIO
APPEAL: WHAT IS THE ATTITUDE OF APPELLATE COURTS TO ADMITTTING FRESH EVIDENCE
It is the attitude of the appellate courts not to admit fresh evidence, fresh issues or additional evidence on appeal except where the circumstances are such that it was not foreseen and it is in the interest of justice that the fact be led. See Obasi v. Onwuka 1987 3 NWLR pt. 61 p.364. PER BODE RHODES-VIVOUR, J.C.A.
APPEAL: WHETHER IT IS WRONG TO FILE AN AMENDED NOTICE OF APPEAL WHERE THE APPLICANT IS PROCESS OF SEEKING LEAVE
It is wrong to file an amended Notice of Appeal when the applicant is in the process of seeking leave. The process ought to be titled “Proposed Notice of Appeal”. PER BODE RHODES-VIVOUR, J.C.A.
JUSTICES
ZAINAB ADAMU BULKACHUWA Justice of The Court of Appeal of Nigeria
BODE RHODES-VIVOUR Justice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
Between
1. ABUBAKAR N. MOHAMMED
2. ALL NIGERIAN PEOPLES PARTY Appellant(s)
AND
1. CHRISTOPHER DAJAN
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. PRESIDENT ELECTORAL COMMISSIONER INDEPENDENT NATIONAL ELECTORAL COMMISION (INEC) PLATEAU STATE
5. RETURNING OFFICER, QUA’AN PAN SOUTH CONSTITUENCY
6. THE ELECTORAL OFFICER, QUA’AN PAN LOCAL, GOVERNMENT PLATEAU STATE Respondent(s)
BODE RHODES-VIVOUR, J.C.A. (Delivering the Leading Ruling): By way of Motion on Notice filed on the 4th of March, 2010 and brought under Section 246(1)(b)(11) of the Constitution, Sections 16 and 31 of the Court of Appeal Act/Order 6 rule 15 and Order 7 rule 10 of the Court of Appeal Rules, 2007, Learned Counsel for the appellants, Mr. S.S. Obende seeks the following:
1. Leave to amend the original Notice of Appeal filed on the 2nd day of October, 2009 by the filing of additional grounds of appeal in the terms of the grounds 14 to 25 of the proposed amended Notice and grounds of Appeal attached as exhibit ‘A’ to this motion, as set out in the schedule to this motion.
2. An order granting leave to the appellants, to raise grounds 15, 24 and 25 as fresh issues-
3. An order deeming the amended Notice of Appeal, filed as duly filed and served.
I.S.S. Wakklek Esq. a legal practitioner in chambers of Okey Akobundu and Co, one of the solicitors engaged by the appellant/applicants deposed to a 22 paragraph affidavit in support of the application. Annexed to the affidavit are documents marked exhibits A, B. Learned counsel for the 1st and 2nd respondents, Mr. I. Aderogba did not file a counter affidavit.
Learned Counsel for the 3rd to the 6th Respondents, Mr. S. Ibyen did not file a counter affidavit and had no objection to the grant of the application.
At the hearing of the application on the 29th of March, 2010 Learned Counsel for the applicants observed that the amendment sought is as it relates to the filing of additional grounds, contending that the amendment is restricted to the leave required.
As regards prayer 2, Learned Counsel observed that none of the three grounds of Appeal requires fresh evidence, contending that Learned Counsel for the 1st and 2nd Respondents never said which of the said three grounds requires fresh evidence. He urged us to grant the Motion.
Learned Counsel for the 1st and 2nd Respondents observed that the application is incompetent because the applicants did not ask for leave to file additional grounds. Reliance was placed on Reg. Trustees of Amorc v. Awoniyi 1994 7 NWLR Pt. 355 p. 954.
Inyang v Ebong 2002 2 NWLR Pt 751 p. 284.
Relying on Corporate Affairs Commission v. Reg. Trustees of Celestial Church of Christ 2009, 11 NWLR pt. 1151 P. 40.
Learned Counsel urged us to refuse to allow Learned Counsel for the applicants raise fresh issues since there should be an end to Litigation. Learned Counsel for the 3rd to 6th Respondents did not oppose the application.
Judgment was delivered on 16/9/09 while the Notice of Appeal was filed on 2/10/09.
The position of the law is that in election matters such as this the appellant is required to file his Notice of Appeal within 21 days after 16/9/09. That is to say the appellant must file his appeal on or before 7/10/09. In this case the Notice of Appeal was filed on 2/10/09. The original Notice of appeal was thus filed within time.
If the applicant seeks to amend his Notice of appeal his application to that affect(sic) must be filed before 7/10/09, and where he is unable to file his application within the time supra he must ask for leave to file additional grounds.
The appellant will only require leave of the Court of appeal where the additional grounds are to be filed out of time. See Tukur v Government of Gongola State 1988 1 NWLR pt. 68 p. 39.
The issue for determination is:
Whether the applicants asked for leave to file additional grounds.
Prayer No. 1 reads in part:
“Leave to amend the original Notice of Appeal …By filling of additional grounds of appeal…”
“Leave,” means permission. The prayer is inelegantly drafted but is clear to my mind that the applicants seek leave to file additional grounds which can only be filed by amending the original Notice of Appeal. It is a question of semantics. It is clear what the applicants seek. Permission to file additional grounds. I am satisfied that the amendment sought relates to filing of additional grounds.
Prayer 1 is hereby granted.
Prayer 2.
Leave to adduce fresh issues as in grounds 15, 24 and 25 are entirely at the discretion of the Court granted for the furtherance of justice. The exercise must be judicious, that is to say with sufficient, correct and convincing reasons. See UBA PLC BTL Ind Ltd. 2005 10 NWLR Pt.933 p. 356.
Grounds 15, 24 and 25 with their Particulars read thus:-
GROUND 15
The Honourable Court erred in fact when it held that:
“On the Electronic Voters Registers (EVR) referred to by the Respondent’s Counsel, these public documents which are in the custody of the 3rd – 6th Respondents were not made available to the petitioners for the purpose of tendering them. These documents were not made available for the inspection of this Tribunal by the Respondents”
And thereby occasioned a miscarriage of justice.
PARTICULARS OF ERROR
(a) The Electronic Voters Registers were tendered together with the Manual Registers.
(b) The Electronic and Voter Registers were produced by the INEC, upon the order of subpoena served by the Tribunal.
(c) The Electronic Voters Registers were duly inspected by the petitioners Counsel and the Tribunal.
(d) It was the duty of the Tribunal to give the documents distinct Exhibits numbers.
(e) The Tribunal marked the voters Registers (‘Manual and EVR’) as Exhibits.
(f) TheTribunal did not consider the Electronic Voter Registers at all.
GROUND 24
The learned tribunal, erred in Law when without affording the Electoral officers any hearing, it, proceeded to adjudge them liable in holding thus:
“These are the, units in the, constituency where the electoral officials ‘abdicated their responsibility’ and duty of ensuring free and fair election and pitched their tent on the side of non-compliance with the principles, and provisions of the Electoral laws and Regulation, which Would have ensured an election devoid of irregularities”
And thereby occasioned a miscarriage of justice.
PARTICULARS OF ERROR
(a) The allegation of non-accreditation and over-voting were made against, presiding officers of specific polling units Ungwai Hausawa, Npap, Ungwai Madaki 004 and 005.
(b) The tribunal adjudged the presiding officers culpable without affording them the opportunity of being heard in evidence.
(c) None of the presiding officers who were adjudged culpable were joined as parties to the proceedings.
(d) The presiding officers were not giving a hearing before the tribunal nullified the result of the elections in the respective polling units.
GROUND 25
The learned Tribunal erred in Law when contrary to the principles of fair hearing, it suo-motu made out a case for the petitioners, and on the basis of the case made out for the petitioners, the tribunal nullified the election and return of the appellants and thereby occasioned a miscarriage of justice.
PARTICULARS OF ERROR
(a) The tribunal did not play its role as an independent arbiter.
(b) The petitioners tendered documents and did not lead evidence to link or connect the documents to each other.
(c) The tribunal assumed the Responsibility of the petitioners, when it proceeded to link up the Voters Registers to the forms ECSA tendered for the respective polling units.
(d) The tribunal and the petitioners were at variance or cross purposes with regards to the contents or entries of the documents tendered by the petitioners.
(e) The tribunal concluded investigation in the chambers in an attempt to connect the documents to one another.
It is the attitude of the appellate courts not to admit fresh evidence, fresh issues or additional evidence on appeal except where the circumstances are such that it was not foreseen and it is in the interest of justice that the fact be led. See Obasi v. Onwuka 1987 3 NWLR pt. 61 p.364.
In the affidavit in support, it is deposed on behalf of the applicants in paragraphs 8, 9, 10, 15 as follows:-
8. I know that the Original Notice of Appeal does not reflect the issues of fair hearing as it concerns the proceedings of the Honourable tribunal in its judgment. A copy of the Original Notice of Appeal is hereto marked as Exhibit A.
9. I know that in the course of preparing the amendment of the Notice of Appeal, the appellants counsel encountered difficulties in an attempt to obtain the correct marking of the Exhibits tendered before the tribunal.
10. I know that when the voters registered were tendered as Exhibits before the tribunal, they were marked as one document (both Manual and Electronic Registers).
15. I know that it has not been possible for the appellants to ascertain, how the documents were marked as Exhibits, in view of the position of the tribunal as it relates to the non production of the Electronic Voters Registers, when same were produced and tendered before the tribunal.
No counter-affidavit was filed. These depositions are to be admitted as true in the absence of counter affidavit, moreso as the Record of Appeal inclines towards these depositions.
Grounds 15, 24, 25 raise issues of the Tribunal’s failure to consider all the exhibits tendered before it alleged denial of fair hearing and making out a case suo motu for the petitioners. The general competence of the petition and the ascription of probative value to evidence led. See Balogun v. Agboola 1974, 1 ALL NLR (Pt. 2) R. 66.
My Lords these are issues of fact easily gleaned from the Records of appeal. None of the grounds requires fresh evidence. Learned counsel for the Respondent was unable to say which of grounds 15, 24, 25 requires fresh evidence.
Prayer 2 would in the circumstances be granted.
Prayers 3.
An order deeming amended Notice of Appeal, filed as duly filed and served.
It is wrong to file an amended Notice of Appeal when the applicant is in the process of seeking leave. The process ought to be titled “Proposed Notice of Appeal”.
Furthermore, a deeming order cannot be granted because the process has not been filed as a separate process. Accordingly prayers 1 and 2 succeed. As regards prayer 3 the appellant is given three days to file and serve his amended Notice of appeal.
ZAINAB A. BULKACHUWA, J.C.A.: I have read before now the draft of the ruling just delivered by my learned brother Rhodes-Vivour J.C.A. I agree with the conclusion contained therein that prayers 1 and 2 are meritorious and should be allowed. They are accordingly granted as prayed. I abide by the consequential order as regards prayer 3. I make no order as to costs.
ABUBAKAR DATTI YAHAYA, J.C.A. I have had the privilege of reading in advance, the Ruling just read by my learned brother, BODE RHODES-VIVOUR J.C.A. I agree absolutely with his reasoning and conclusion. I have nothing to add.
I abide by the orders made therein.
Appearances
S. S. Obende;
M. A. Davan.For Appellant
AND
I. Aderogba holding the brief of
S. T. Ologunoritse
J. John,
A. M. Umar
D. P. Dusu with him,
S. IbyenFor Respondent
