ACTION CONGRESS OF NIGERIA V. SULE LAMIDO & ORS (2011)

ACTION CONGRESS OF NIGERIA V. SULE LAMIDO & ORS

(2011)LCN/5007(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 14th day of December, 2011

CA/K/EPT/GOV/50/2011

RATIO

RIGHT TO FAIR HEARING: STATUTORY PROVISION ON A PARTY’S INVIOLABLE RIGHT TO VENTILATE HIS CASE IN A COURT OF LAW

By virtue of the provision of section 36(1) of the 1999 Constitution, as amended, a party has the inviolable right to ventilate his case in court of law on the twin principles of fair hearing – nemo judex in causa sua, nobody shall be a judge in his own cause, and audi alterem partam, – hear the other side. PER OBANDE OGBUINYA, J.C.A.

FAIR HEARING: EFFECT OF A COURT PROCEEDING CONDUCTED IN BREACH OF A PARTY’S RIGHT TO FAIR HEARING ;WHAT IS THE LITMUS TEST FOR THE OBSERVANCE OF FAIR HEARING

It is now settled law that where a party’s right to fair hearing is eroded or trampled upon, then the whole proceedings of the court, no matter the brilliance and diligence injected into them, would be marooned in the miasma of nullity. This is a confluence point or median where the issue of lack of jurisdiction and lack of fair hearing meet. The litmus test for observance of fair hearing is that a Fair-minded person who watched the proceedings should conclude that the court was fair to all the parties. Fair hearing, a synonym of fair trial, imports giving parties to a case an equal opportunity and level playing ground to present their case, see O.O.M.F Ltd. v. NACB Ltd. (2008) 12 NWLR (Pt. 1098) 412; Leaders & Co. Ltd. V. Bamaiyi (2010) 18 NWLR (Pt.1225) 329; Agbiti V. Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175; Unibiz (Nig) Ltd. V. C.B.C.L. Ltd. (supra); Isiyaku Master (supra); S & D Construction Co. Ltd. V. Ayoku (supra). PER OBANDE OGBUINYA, J.C.A.

DUTY OF COURT: WHETHER ITS THE DUTY OF THE COURT TO ENSURE THAT A PARTY TAKES ADVANTAGE OF THE ATMOSPHERE OR ENVIRONMENT BY INVOLVING HIMSELF IN THE FAIR HEARING OF THE CASE

In the case of Newswatch Comm. Ltd. V Atta (2006) 12 NWLR (Pt.993) 144 at 170-771, Tobi JSC stated: It is the duty of the court to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the court cannot turn around to accuse the court of denying him fair hearing … See, also, Oyegun v. Nzeribe (2010) 7 NWLR (Pt.1194) 577; F.H.A. v. Kalejaiye (2010) 19 NWLR (Pt.1226) 147. PER OBANDE OGBUINYA, J.C.A.

INTERPRETATION OF STATUTE : INTERPRETATION OF PARAGRAPHS 41(10) AND 46(5) AND (6) OF THE FIRST SCHEDULE AS REGARDS THE POWER OF THE TRIBUNAL OR COURT TO CLOSE THE CASE OF ANY PARTY, WHO FAILS TO CONCLUDE HIS CASE WITHIN A REASONABLE TIME

RECORD OF APPEAL: WHETHER PARTIES AS WELL AS THE COURT ARE BOUND BY THE RECORD OF APPEAL

Parties, inclusive of the appellant herein, and the court are bound by the record of appeal, none is allowed to go outside the perimeter of its content. I am without the necessary vires to factor into the record of this appeal what is, omitted nor is to exclude from it what included. To do so will be an affront to the law, see Ogidi v State (2005) 5 NWLR (Pt.918) 286; O.O.M.F. Ltd. v. NACB Ltd (supra); Ekpemupolo v. Edremoda (2009) 8 NWLR (Pt.1142) 166; International Bank Plc v. Onwuka (2009)3 NWLR (Pt. 1144) 462; Sapo v Sunmonu (2010) 11 NWLR (Pt. 1205) 3741. In the case of Orugbo v. Una (2002)16 NWLR (Pt.792) 175 at 206-207, Tobi, JSC opined: …An appellate court has no jurisdiction to read into the record what is not there and it equally has no jurisdiction to read out of the record what is there. Both are forbidden areas of an appellate court, if one may use that expression. An appellate court must read the record in its exact content and interpret it. Of course it has the jurisdiction to decide whether on the face of the record and on the cold facts the decision was proper or not. PER OBANDE OGBUINYA, J.C.A.

GROUND OF APPEAL: WHETHER A GROUND OF APPEAL MUST GIVE BIRTH TO AN ISSUE FOR DETERMINATION

The law is now settled that a ground of appeal must give birth to an issue for determination or run the risk of being deemed as abandoned and liable to be struck out, see Odunze V. Nwosu (2007) 13 NWLR (Pt. 1050) 1; Aderibigbe V. Abidoye (2009) 10 NWLR (Pt. 1150)592; Ukiri V. Geco. Prakla Ltd. (2010)16 NWLR (Pt. 1220)544; Okonobor V. D.E & S.T Co. Ltd. (2010)17 NWLR (Pt. 1221) 181: Since the ground sixteen runs foul of this hallowed principle of law, I have no option than to weed it out from the notice of appeal. Consequently, the said ground sixteen is struck out on account of abandonment. PER OBANDE OGBUINYA, J.C.A.

LEAVE OF COURT: CONSEQUENCE OF NOT SEEKING AND PROCURING A LEAVE OF COURT WHERE IT IS REQUIRED

It is the law that where leave, which in legal parlance means permission, of court is required before institution of an action or filing any process or in doing anything in any proceedings, that leave must be sought and procured otherwise the performed act is vitiated, see Otu v. ACB Int’l Bank Plc (2008) 3 NWLR (Pt.1073) 179; BBN Ltd. V Olayiwola & Sons Ltd. (2005) 3 NWLR (Pt.912) 434; Agip (Nig) Ltd. v. Agip Petroli Int’l (2010) 5 NWLR (Pt.1187) 348. PER OBANDE OGBUINYA, J.C.A.

TAINTED WITNESS: WHO IS A TAINTED WITNESS; ATTITUDE OF THE COURT TO THE EVIDENCE OF A TAINTED WITNESS

In the case of Adetola v. State (1992) 4 NWLR (pt.235) 267 at 273, Omo, JSC, said: A “tainted” witness has been described as a witness who is either an accomplice or who by the evidence he gives may and could be regarded as “having some purpose of his own to serve….The Supreme Court has held that the evidence of such a witness should be treated with considerable caution and be examined with a tooth comb. See, also, Ojo v. Gharoro (supra); Moses v. State (2006) 11 NWLR (pt.992) 458; Omotola v. State (2009) 7NWLR (Pt.1139) 148; Olaiya v. State (2010) 3 NWLR (Pt. 1181) 423. PER OBANDE OGBUINYA, J.C.A.

JUSTICES:

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria

THERESA N. ORJI-ABADUA Justice of The Court of Appeal of Nigeria

OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria

Between

ACTION CONGRESS OF NIGERIA (ACN) Appellant/Cross-Respondent – Appellant(s)

AND

1. SULE LAMIDO
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondents/Cross-Appellants
4. THE PRESIDING OFFICER, JIGAWA STATE
5. THE CHIEF ELECTORAL COMMISSION OF JIGAWA STATE – Respondent(s)

OBANDE OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal is an offshoot of the judgment of the Governorship Election Petition Tribunal of Jigawa State, delivered on 24/10/2011, wherein the appellant’s petition was dismissed.
The facts leading the appeal are not complicated. The third respondent, the Independent National Electoral Commission (INEC), conducted an election into the office of the Governor of Jigawa State of Nigeria on 26/04/2011. The appellant, Action Congress of Nigeria, a registered political parry in Nigeria, fielded one Mohammed Badaru Abubakar as its flag bearer and both of them contested the election. The said gubernatorial, candidate of the appellant was not a party to the petition.
The second respondent, Peoples Democratic Party, also a registered political party, had the first respondent, Sule Lamido, as its standard bearer in that governorship election. Seven other political parties with their respective candidate partook in the election. After the electoral exercise, the INEC declared and returned the first respondent as the winner with the majority votes of 676,307 as against those of the appellant score of 343,177 votes.
The appellant was irked by the declaration and return of the first respondent and it challenged the validity of the election in a petition presented on 17/05/2011 before the tribunal. In a swift reaction to the appellant’s petition, the first and second respondents filed a 20 – paragraph joint reply on 03/06/2011. In the same view, the third – fifth respondents filed their 10 – paragraph joint reply on 25/05/2011 after they had entered appearance on 19/05/2011. The grounds upon which the petition was based were:
(a) That the 1st Respondent was at the time of the election not qualified to contest the election.
(b) That the election is invalid by reason of non-compliance with the provisions of the Electoral Act, 2010.
(c) That the 3rd – 5th Respondents wrongly computed majority of lawful votes cast at the election by accepting as valid unlawful votes counted as cast for the 1st Respondent even though the said figures were altered and inflated and are products of artificial polling units.
(d) The election is invalid by reasons of corrupt practices multiple thumb printing and vote rigging.”
Consequently, the appellant prayed the tribunal as follows:
a) That the 1st respondent at the time of the election is not qualified to contest the election.
b) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act 2010.
c) That the 1st Respondent was not duly elected by majority of lawful votes cast at the election.
d) That the election of the 1st respondent be nullified on the ground that he was not qualified to contest election and declare the petitioner’s candidate as the duly elected having satisfied the requirements of the Constitution of the Federal Republic of Nigeria 1999 and the Election Act 2010.
e) THAT IT DETERMINED that the petitioner’s candidate is entitled to be returned by the 3rd, 4th and 5th Respondents as having been duly elected as the Governor of Jigawa State having record majority of the valid lawful votes cast at the election.
In line with the law, the tribunal conducted pre-hearing proceedings, in which all the parties participated and same terminated in the issuance of pre-hearing session report. Thereafter, the petition went into full scale trial.
The appellant, as the petitioner, called five witnesses, PW1-PW5, and tendered loads of electoral documents, as exhibits, in evidence. On their part, the first and second respondents, as respondents’ fielded two witnesses, DW1 and DW2, and tendered some documentary evidence. The third-fifth respondents, as respondents, did not call any witness.
At the closure of the trial proceedings, the parties filed and adopted their respective final written addresses. Sequel to the adoption, the tribunal delivered its judgment on 24/10/2010 in which it dismissed the appellant’s petition. The appellant was dissatisfied with that decision. Hence, it filed a notice of appeal hosting 21 grounds on 10/11/2011, contained on for pages 906-923 of the record. The first and second respondents, also, cross – appealed against one aspect of the tribunal’s judgment touching on the impropriety of the appellant’s written address.
When the appeal came up for hearing, on 07/12/2011, parties adopted their respective briefs of argument. Learned counsel for the appellant, Adamu Abubakar, Esq., adopted the appellant’s brief of argument and the appellant’s reply brief of argument, filed on 24/11/2011 and 02/12/2011 respectively, as representing his arguments in support of the appeal. He urged the court to allow the appeal. On the other hand, learned counsel for the first and second respondents, O.E.B. Offiong, Esq., SAN, adopted their brief of argument, filed on 29/11/2011, as representing his arguments against the appeal which he urged the court to dismiss. Similarly, learned counsel for the third – fifth respondents, Ibrahim Isiyaku Esq, SAN, adopted their brief of argument, filed, on 03/12/2011, as representing his arguments against the appeal which he prayed the court to dismiss. Incidentally, the appellant and the two sets of respondents formulated their respective issues for determination in their respective briefs of argument. The appellant, in its brief of argument, crafted the following issues for determination to wit:
1) Whether the Tribunal was right in its rejection of admissible documentary evidence i.e. ballot papers applied for and tendered before it.
2) Whether the tribunal was not in error when it misconstrued in its interpretation the true intendment of section 177 (d) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) regarding qualification to contest election to the office of Governor of a state and despite evidence before it concluded that the allegation of non qualification was not proved beyond reasonable doubt.
3) Whether the tribunal was right in placing onus and responsibility of procuring WAEC officials to testify on the authenticity of exhibit B on the petitioner when the 1st Respondent ought to have taken responsibility haven (sic) tendered exhibit in court and holding that exhibit, B in its original (WAEC Certificate) is not a public document within the meaning of section III of the Evidence Act, admitted and relied on same inspire of objection raised thereto by the appellant which objection the tribunal failed to pronounce on.
4) Whether the tribunal was not wrong in it (sic) lopsided/unwholistic examination, assessment, consideration and evaluation of evidence of PW4 and exhibit D as a result of which it ended up holding that the appellant did not prove the allegation of non qualification and presentation of forged certification beyond reasonable doubt when there was sufficient oral and documentary evidence beyond the tribunal that prove (sic) same.
5) Whether the tribunal was not totally wrong in its assessment and evaluation of the evidence of DW 1 and DW2 and on the weight attached to their evidence even as tainted witnesses.
6) Whether the tribunal was not totally wrong in its refusing to give consideration to exhibits I-II, E-Z and 1-36 and wrongly misapply (sic) the decision in W.A. BREWERIES V. SAVANNAHA VENTURES (2002) 5 SCN thereto concluding that it was not its duty to do so and whether it was right when it held that allegation of non compliance with the statutory provision of the Electoral Act must in all cases be proved beyond reasonable doubt.
7) Whether the tribunal was right when it suo motu closed the appellant’s case three days short of its statutorily allocated 14 days resulting to denial of the petitioner’s right to fair hearing and when it refused the application by the appellant to summon before it officials of the INEC and tender ballot papers.
8) Whether the tribunal was right when it failed to consider the state of pleadings of the parties even when the Respondents did not join issues with the appellant on paragraphs 18 and 19 of the petition.
On the contrary, the first and second respondents, in their brief of argument, framed 13 issues for determination Viz.
1) Did the Tribunal wrongfully reject the Ballot papers sought to be tendered in evidence?
2) Was the Tribunal right when it held that Exhibit B, the attachment to Exhibit A, the evidence of P.W.4 and Exhibit D proved that the 1st Respondent was qualified to contest the election to the office of Governor of Jigawa State in the election held on 26th April, 2011?
3) Was the Tribunal right when it held that the onus of proof that Exhibit B and the attachment to Exhibit A are forged documents rests on the Appellant and that the Appellant had failed to lead evidence to shift the onus?
4) Was Exhibit B admissible or properly admitted into evidence?
5) Was the Tribunal right when it held that the Appellant in its Written Address was making a case different from that which he pleaded with regard to the purpose for which it sought to tender Exhibit A and its attachment?
6) Was the Tribunal right when it held that the failure to bring the Registrar of WAEC to testify after the Appellant had applied for subpoena constituted withholding of evidence?
7) Did the Tribunal refuse an application by seeking to summon before it officials of 3rd Respondent to tender Ballot papers used in the election and which denial constituted denial of fair hearing?
8) Did the Tribunal wrongly close the case of the Appellant before the expiration of 14 days within which it should present its case?
e) Was the Tribunal right when it refused to carry out an out of court examination of documents when the said documents were not linked by oral evidence of any aspect of the case of the Appellant in examination in open court?
10) Did the Tribunal err in the evaluation of the evidence of D.W.1 and 2?
11) Did the Tribunal err in the standard of proof it held the appellant to in this case with regard to the allegations of non compliance?
12) Did the Respondents fail to join issues with the Appellant in respect of paragraphs 18 and 19 of the Petition?
13) Whether the Judgment of the Tribunal was against the weight of evidence?
On their part, the third – fifth respondents, in their brief of argument, distilled 10 issues for determination, namely:
(1) Whether the trial Election Petition Tribunal erred in law in refusing to admit, in evidence, ballot papers tendered by the petitioners.
(2) Whether the allegation that the 1st Respondent was not educated up to the School Certificated level was proved by the Petitioner.
(3) Whether the burden of proving Exhibit B is a forged document is on the petitioner
(4) Whether Exhibit B is inadmissible in evidence.
(5) Whether the trial Election Petition Tribunal was in breach of the Rules of Fair Hearing when –
(a) it refused the application of the Petitioner to summon the 3rd Respondent tender ballot papers; and (b) it closed Petitioner’s case.
(6) Whether, in the circumstances of this case, the Election Petition Tribunal was wrong in refusing to consider, examine or analyse and evaluate Exhibits E-Z and 11, 14, 15 -36.
(7) Whether, having failed to call witnesses to tie Exhibits E-Z, 1-11 and 15-36 to specific allegations, counsel can seek to do so in his final address.
(8) Whether the standard of proof of the allegations of non complicate set out in the petition was “prove beyond reasonable doubt”
(9) Whether there was a failure on the part of the Election Petition Tribunal to determine if issues were joined on the averments in paras. 18 and 19 of the Petition.
(10) Whether, in the circumstances of this case the failure by the 3rd – 5th Respondents to call oral evidence reduced the burden on the petitioner prove its case for dedicatory order.
I have situated the appellant’s issues for determination with those of the two sets of respondents. To my mind, the three sets of issues mirror themselves as they are the same in substance. As a matter of fact, the respondents’ can be properly subsumed under those of the appellant’s, on this score, I will utilise the appellant’s issue in the determination of this appeal.
Before the learned senior counsel for the first and Second respondents outlined his issues for determination, he urged the court to strike out ground 16 of the appeal as no issue so formulated on it and was abandoned. On points of law, learned senior counsel for the appellant argued per contra that ground 15 of the notice of appeal was not abandoned as issue 6 was distilled from it, and argued in paragraph 9.03 on pages 24-25 of the appellant’s brief of argument. He persisted that the failure to state ground 16 as among the ones issues were distilled from was a typographical error and was not enough to render it abandoned.
SUBMISSIONS ON THE ISSUES
ISSUE ONE
On that issue, learned senior counsel for the appellant restated the positions of the law that pleadings determined the relevance and admissibility of any document and that a party must link documents to the specific areas of the petition. He cited the cases of ANPP V. Usman (2008) 12 NWLR (Pt.1110) 1; Jalingo V. Nyame (1992) 3 NWLR (Pt.231) 538; Terab V. Lawan (1992) 3 NWLR (Pt.231) 569. He explained that the appellant, in paragraph 21 of the petition complained of multiple thumb printing by PDP agents and sought for forensic experts to establish election rigging and bribing in the various wards of the 27 Local Government Areas of Jigawa State. He submitted that documentary evidence need not be specifically pleaded so long as facts by which it was covered were pleaded. He referred to the cases of Zanon Petroleum & Gas Ltd. V. Idrisiyya (Nig) Ltd (2006) All FWLR (Pt.312) 212; Oseni V. Dawadu (1994) 4 NWLR (Pt.339) 390.
He further submitted that the appellant caused subpoena duces tecum to be issued to the third respondent to produce all the ballot papers used in the election and same produced, after payment of the service fees of N2.5M, but the tribunal wrongly rejected them inspite of the fact that they were relevant and parties consented to them during the pre-hearing session. He reasoned that it had been emphasised that no account should a party be denied the opportunity of placing all the documents that would assist him in proving his case the court. In support of that view, he relied on the case of INEC V. Oshiomohole (2009) 4 NWLR (Pt.1132) 607. He then urged the court to hold that the tribunal was wrong in refusing to admit the listed ballot papers used in the election particularly in Birinin Kudu, Gwaram, Ringim, Taura and Giwa Local Government Areas of Jigawa State.
For the first and second respondents, their learned senior counsel contended that the tribunal was right in rejecting the documents, ballot papers in Gasakoli ward, because they were not listed as required by paragraph 4(5) of the First Schedule to the Electoral Act, 2010, as amended, nor did the appellant obtain the leave of court as enjoined by paragraph 14(8) of the First Schedule since they were not listed nor filed along with the petition. He added that those provisions, paragraphs 4(5) and 41(8) of the First Schedule, had the same status like the provisions of the Electoral Act, 2010. He placed reliance on the cases of Ali v Osakwe (2009) 14 NWLR (Pt.1160) 75; Ibidapo V. Lufthansa Airlines (1997) 4 NWLR (Pt. 498) 124.
He advanced the second reason for the rejection of the ballot papers to be lack of leading; noting that paragraph 21 of the petition, on which the appellant claimed it pleaded facts about them” were vague and general in the nature, which could not amount to averment of fraud or criminal, upon which evidence could be based. He cited the cases of UAC Ltd. v. Taylor (1936) 2 WACA 70; Omoboriwo V. Ajasin (1984) 1 SC 206 in support. He stated that the averments in that paragraph 21 was not sufficient for the admission of the ballot papers and that evidence led on unpleaded facts was inadmissible and it would go to no issue. He referred to the case of ANPP V. Usman (2008) 12 NWLR (Pt. 1100) 1. He insisted that the tribunal rightly rejected those ballot papers.
For the 3rd – 5th respondents, their learned senior counsel’s submissions were the same, in substance, with those of the learned senior counsel for the first and second respondents. He added that the use of the word “shall” in paragraph 4(5) (C) of the first schedule made observance of the provision mandatory. He relied on the Adegbuyi V. Mustapha (2010) All FWLR (Pt.532) 1753. He further, added that the appellant’s attempt to tender the ballot papers en bloc was wrong in law because the court had no power to sort them out in their chambers as that would occasion a breach of fair hearing. He placed reliance on the cases of ANPP V. Usman (supra); Awuse V. Odili (2005) 16 NWLR (Pt. 952)416; Nteogwuile V. Otuo (2001)16 NWLR (Pt.738) 58; Terab V. Lawan (supra).
ISSUE TWO
Learned senior counsel for the appellants drew the court’s attention to the provision of section 177(d) of the constitution, as amended, dealing with qualification for election to the office of a governor and argued that education to at least school certificate level denoted evidence of attendance and completion of secondary school education, teacher training college or their equivalent. He referred to section 318 of the Constitution, as amended. He maintained that authorities were a bound that a candidate must not necessarily pass the school certificate to qualify for election into the office of a governor of a state, but compulsory for him to prove that he attended and was educated up to school certificate level. He cited the case of Imam V. Sheriff (2004) ILRCN 62 at 135 in support of his view. He took the view that exhibit B, admitted in its original form, could not, under the Constitution and laws, be evidence of attendance up to at least school certificate level rather production or submission of school leaving certificate or testimonial or statement of result duly authenticated would be sufficient.
He further argued that it was not the intention of the maker of the Constitution that proof on allegation of infraction of section 182 (i) (j) thereof should have the elements of the offences of forgery as contained in section 366 of the Penal code or section 465 of the criminal code which must be proved beyond reasonable doubt. He added that the only purpose and object of that section 182 (i) (j) of the constitution was to prevent persons with questionable integrity or criminally damnified from aspiring to the office of a governor of a state so that the issue of proving ingredients of criminal intention in presenting or altering of certificate under the Code was not sacrosanct within the context of section 182 (i) (j) of the Constitution. He noted that proof beyond reasonable doubt was not proof beyond all shadow of doubt and referred to the case of Agbo V. State (2006) All FWLR (Pt. 309) 380. He concluded that the conclusive of the tribunal on that issue was wrong.
Learned counsel for the first and second respondents argued that exhibits A, B, D and evidence of PW4 proved that the first respondent was educated up to school certificate level and so qualified within the meaning of the provisions of section 177 (d) of the constitution; as amended. He took the contrary view that education up to school certificate level entailed attendance at secondary school, that it merely required that a person received a course of instructions up to secondary school level or its equivalent. He observed that there were external candidates who took the General Certificate for Education in contrast with school candidates and drew an analogy with subscription to correspondence colleges which our forbears utilised to attain their positions. He reminded the court that the issues of whether the first respondent obtained exhibit B and attachment to exhibit A outside attendance at a secondary school did not arise from the evidence. He insisted that evidence showed that the first respondent attended Government College Zaira (now Barewa Collage) from 1962 – 1966, sat and was award the West African School Certificate.
He further argued that exhibit A and B bore the name of the first respondent and he was presumed to be their owner and cited the case of Madu v. Madu (2006) 6 NWLR (Pt.1083) 296 in support. He stated that PW1 admitted that exhibit B and the attachments to exhibit A were identical and the attachments spoke for themselves and he referred to the case of Aiki v. Idowu (2006) 9 NWLR (Pt. 954) 47. He added that exhibit D, produced by PW4, confirmed that the first respondent was a student of that college for 5 years, 1962-1966. He persisted that exhibit B, being an original certificate, did not require authentication and referred to Words and Phrases Legally Defined, edited by David Hay in Lexis Nexis, Butterworth’s, 4th edition, where the word “Certificate” was defined to mean – “writing on paper certifying the truth of something.” He maintained that exhibits B and D were documents which had been in existence since 1966 and they enjoyed the presumption that the signatures therein were of those who signed them. He referred to section 155 of the Evidence Act, 2011.
It was his further argument that it was the intention of the makers of section 182 (1) (j) of the constitution that its infraction should have the elements of offences of forgery as contained in the Penal Code or Criminal Code and he relied on the same case of Imam V. Sheriff (2005) 4 NWLR (pt. 914) 80 at 163. He then posited that it must be proved beyond reasonable doubt. He noted that the tribunal found no discrepancies in exhibit D; adding that the appellant never led evidence to show that the signatories in exhibits B and D were not of those who signed so as to prove forgery against the first respondent.
Learned senior counsel for the third – fifth respondents contended that the evidence of PW4 and exhibits B confirmed that the first respondent was educated up to at least School certificate level as required under section 177 (d) of the Constitution. He added that exhibit B was not a public document and that the tribunal was tight to so hold.
On points of law, learned senior counsel for the appellant argued that the submission regarding “Candidates who take the General Certificate of Education as external Candidates in contrast with School certificates” was never an issue before the tribunal as the parties did not join issues on it and so should not be considered.
ISSUE THREE
Learned counsel for the appellant submitted that the tribunal’s invocation of section 149 of the Evidence Act against the appellant for its inability to procure WAEC officials was wrong in law when it made all frantic efforts to ensure their attendance to the tribunal until its case was closed on 01/09/2011. He took the view that section 149 (d) of the Evidence Act applied to withholding of evidence, not failure to call a witness and relied on the case of Ezemba V. Ibeneme (2004) 7 SCNJ 136.
He conceded that the failure to answer to a subpoena means that the appellant was entitled to issue committal processes or lead secondary evidence on the matter and referred to the case of Buhari v. Obasanjo (supra)(pt.941). He, however, added that the situation in the petition was different in that the document was already before the tribunal and WAEC was only required to authenticate it by evidence or certification and could be done by either party to the petition.
He further submitted that the appellant led evidence to show that the exhibit B was not acquired by the first respondent through the college. He referred to the evidence of PW4 which showed that there was no evidence of exhibit B in exhibit D, the first respondent’s personal file in the college, and that the WAEC centre number in exhibit B was not that of the college meaning that it, exhibit B, was forged.
He reasoned that exhibit B, which was tendered from the bar and admitted against objection from the appellant, was issued by the WAEC, an official body, and any certificate from it was a public document under section 109 (ii) of the Evidence Act and only a certified true copy of it could be admissible. He placed reliance on the case of Bayo V. Njiddah (2004) All FWLR (pt. 192) 10 where primary school leaving certificate was held to be a public document. He, however, admitted that original document was admissible in evidence if it complied with the provision of section 91 (1) of the Evidence Act by being produced by its maker otherwise it must comply with the requirement of section 111 of the Evidence Act.
He repeated that since exhibit B was already in evidence, it became mandatory for the first respondent to call its maker, WAEC, to authenticate it in line with the decision of the Supreme Court in G. Chitex Ind. Ltd. V. Oceanic Bank Ltd. (2005) 7 SCNJ 278. He maintained that it was thereafter that the onus would shift to the appellant and relied on the case of Olowu V. Olowu (1985) 3 NWLR (pt. 13) 372. He added that the appellant, during the pre – hearing season, consented to the admission of the attachment to exhibit B and not to exhibit B as ruled by the tribunal. He posited that even if the appellant consented to the admission of exhibit B, that consent could not render it admissible since it was inadmissible in law. He relied on the case of Thanni V. Bank of Nigeria Ltd. (1995) 5 NWLR (pt. 657) 470.
On behalf of the first and second respondents, Learned Counsel contended that it was the appellant that asserted, in paragraph 1 (a), 11 (i) and (iii) and 12 – 15 of the petition, that the first respondent presented a forged certificate and he bore the onus of proof of that assertion. He referred to the case of Haske V. Magaji (2009) All FWLR (pt. 461) 887.
He explained that the tribunal never cast the burden on the appellant to prove that exhibit B was genuine, but the burden to prove that the certificate attached to exhibit A was forged. He persisted that the appellant failed to discharge that burden in order to shift the onus to the first respondent. He noted that the evidence of PW1 was discredited and not believed by the tribunal which ruled that PW4 and exhibit D supported the case of the appellant. He referred to the case of Onwuka V. Edata (1989) 1 NWLR (pt. 96) 183. He further contended that the true meaning of the rule that burden of proof lay on a party who asserted the affirmative was whether a given allegation, whether affirmative or negative, formed an essential part of a party’s case in which case the proof of such allegation would rest on him and cited in support, the case of Buhari V. INEC (2008) NWLR (PT. 1120) 246 AT 369 -370. He noted that it was not the case of the appellant that the examination centre of WAEC and exhibit B were kept in exhibit D and that it never led any evidence to show that exhibit B was not obtained through the College. He insisted that the case of G. Chitex Ind. Ltd. V. Oceanic Bank Ltd. (2005) 14 NWLR (pt. 945) 392 was quoted out of context by the appellant and not applicable to the appeal.
He repeated that exhibit B enjoyed the presumption in that the signature and writing on it being over 20 years were of those it claimed to be and referred to section 155 of the Evidence Act, 2011. He added that the allegation of forgery was criminal in nature for which the appellant was bound to prove beyond reasonable doubt under section 138 (1) of the Evidence Act and that the case of G. Chimtex Ind. Ltd. V. Oceanic Bank Ltd. (supra) would not relieve it of that dirty.
He argued that exhibit B was properly admitted into evidence having been admitted following consent of counsel during pre – hearing session in line with the provisions of 41 (2) and 18 (8) (a) of the first schedule. He added that it was disingenuous for counsel to argue that the appellant never consented to admission of exhibit B but its photocopy during pre – healing session.
He took the view that exhibit B was not a public document because, a document although emanating from a public authority when issued as the record of a private person and kept by that private person with no access to the public for inspection was a private document. He referred to the cases of Ominisi Ukana V. C.O.P. B/S (1995) 8 NWLR (pt. 416) 705; Abdul V. Benue State University (2003) 16 NWLR (pt. 845) 59. He referred to the evidence of DW1 that exhibit B was produced by the first respondents from his custody and handed over to his counsel in his presence.
Learned counsel for the third – fifth respondents drew the court’s attention to the appellant’s pleading in paragraph 11 of the petition to the effect that the first respondent’s certificate was forged and he presented the same forged certificated to the INEC. He then posited that the allegation of forgery and presentation of forged certificate were criminal in nature and that the appellant had the burden to prove them beyond reasonable doubt.
He referred to sections 131 (1) and (2), 132 and 135 (1) and (2) of the Evidence Act, 2011; Buhari V. Obasanjo (2005) 13 NWLR (pt. 941) 1; Nwobodo V. Onoh (1984) 1 SCNLR 1; section 182 (i) (j) of the constitution, as amended. He invited the court to the evidence of PW1, under cross – examination, that he did not invite WAEC to confirm that the certificate presented to INEC by the first respondent was forged – meaning that it was not proved.
On points of law, learned senior counsel for the appellant contended that onus of proof, in civil cases, was never static and the last onus would be on a party who would fail if no further evidence was called and referred to the case of UBN Ltd. V. Ozigi (1994) 3 NWLR (pt. 333). He posited that the provision of section 138 (1) of the Evidence Act would apply where commission of crime by a party was directly in issue and cited the cases of Arowolo V. Itabiyi (2002) 4 NWLR (pt. 757) 356; Godwin Nwankwere V. Joseph Adewumi (1967) NMLR 45. He repeated that it was the first and second respondents that would lose if WAEC was not called to authenticate the exhibits.
He contented that the position of the law, regarding the status of exhibit B, whether a private or public document as decided in case of Ominisi Ukang V. C.O.P. B/S (supra) had changed with the later decisions in the cases of Bayo V. Niddah (supra) and Adekola V. Ailara (2011) All FWLR (pt.572) 1696.
ISSUE FOUR
Learned senior counsel for the appellant intimated the court that the allegations of non qualification and presentation of forged certificate to INEC by the first respondent were contained in paragraphs 10, 11, 13, 14 and 15 of the petition. He noted that the appellant called PW1 and PW4, who tendered exhibit D, to prove them. He then submitted that the tribunal did not correctly evaluate the evidence of DW4 and exhibit B; noting that it merely reviewed them. He cited the case of Nwaobisi V. State (2008) All FWLR (pt. 446) 1974 wherein the difference between review and evaluation of evidence was done. He posited that documentary evidence must be interpreted as whole and closely examined by the Court. In support of that submission, he relied on the cases of Akinbisade V. State (2007) All FWLR (pt. 344) 17; Tangle Traditional Council V. Fawu (2001) 17 NWLR (pt. 742) 293. He stated that the contents of exhibit D were not examined and evaluated and urged the court to do the correct examination and evaluation on the authorities of Okoye V. Kpajie (1973) NMLR 84; Bayo V. Njiddah (supra); Iwuoha V. Nigeria Post Services Ltd. 14 NSCQR (PT.253) 275.
He further submitted that the presumption, under section 167 of the Evidence Act, which the appellant urged on the tribunal was not as to geniuness of contents of exhibit D, but as to existence of certain facts therein, which burden lay on the respondents to explain certain unexplained facts and which they failed to do. He referred to the case of Omoborrowo V. Ajasin (1984) NSCC Vol. 1581. He persisted that if the tribunal had correctly evaluation the evidence of PW1, PW4 and exhibit D, it would have found that the certificate the first respondent presented to INEC did not qualify him to contest the election under section 177 (d) of the Constitution, as amended; adding that exhibit D did not show: his date of leaving the college, the report sheets for forms 4 and 5 were undated, principal’s comment and signature. He concluded that all those were sufficient proof and the burden shifted to the first respondent to prove the contrary. He relied on the cases of Ogbahon V. Reg. Trustees C.C.C.G. (2001) FWLR (pt. 80) 1496; Omega Bank V. O.B.C. (2005) 1 SCNJ 150.
Learned Senior Counsel for all the respondents had contended, in the previous issues, that the tribunal properly evaluated the evidence of Pw1, Pw4 and exhibit D and arrived at a correct finding and decision. It is pointless to repeat those submissions.
ISSUE FIVE
Learned senior counsel for the appellant argued, stoutly, that in the face of the evidence of PW4 and exhibit D, the evidence of DW1 and DW2 could not stand the test of credibility. He classified DW1 and DW2, based on the evidence under cross – examination, as tainted witnesses as defined in the case of Osagiede Ojo V. Gharoro 25 NSCQR 712 at 744. He explained that DW1, under cross examination, stated that he was the chief of staff in the government of the first respondent while DW2 admitted his closeness and intimacy to him. He concluded that the tribunal ought not to have believed their ex testimony.
For the respondents it was submitted that the tribunal was right in not treating DW1 and DW2 as tainted witnesses because, in law, mere close relationship like employer/employee would not make a person a tainted witness in matters in Court. In support of the submission, the case of Ojo V. Gbaroro (2006) 10 NWLR (pt.987) 173 was cited.
ISSUE SIX
Learned Senior counsel for the appellant stated that once a document was received in evidence, a court had the duty to evaluate its probative value. He relied on the case of Awuse V. Odili (2005) 16 NWLR (pt. 952) 416. He, then, submitted that exhibits E – Z and 1 – 36 were duly pleaded, tendered and admitted in evidence and it was the duty of the tribunal to evaluate their probative value, but it did not and rather misapplied the decision in the case of W.A. Breweries V. Savannah Ventures (2002) 5 SCNJ 289. He noted that those exhibits were tendered from the bar, pursuant to paragraph 41 (2) of the First Schedule, by the appellant to prove the allegation in paragraph 19 of its petition. He concluded that documents tendered in evidence needed to relate to pleadings and cited the case of Amaechi V. INEC (2008) All FWLR (pt. 407) 1. He observed that PW1 testified in – chief that the results of the 21 Local Government Areas in Jigawa State did not reflect the state of affairs due to non – compliance with the Electoral Act, 2010, but none of the respondents cross – examined him on that and thereby admitted same not withstanding their general traverse. He relied on the case of Oguejiofor v. Siemens Ltd. (2003) All FWLR (pt. 398) 379.
He repeated that exhibits did speak for themselves and it was the primary duty of court to evaluate and ascribe probative value to them. He maintained that evaluation of those exhibits, E – Z and 1-36, to make findings where they offended the Electorial Act, 2010, would not have amounted to discovery of fresh, facts since the appellant pleaded non – compliance with the Electoral Act, 2010 and INEC guidelines the tribunal ought to have taken judicial notice of them. He cited the case W.A. Breweries V. Savannah Ventures had (supra).
He further submitted that counsel’s final address was meant to assist the tribunal arrive at a just decision on the issue before it. He cited the case of Oguejiofor v. Siemens Ltd. (supra). He described as wrong the tribunal’s finding, Page 903 of the record, on the contents of the address and its refusal to follow the above position of the law. He persisted that the finding was not in tandem with paragraph 19 of the petition when the irregularities in those exhibits were clear infraction of section 74 of the Electoral Act, 2010. He added that to plead irregularities as to non stamping, non signing and counter signing would amount to pleading evidence and wrong in law and cited the cases of Niger Mills Co. Plc. V. Agube (2008) All FWLR (pt. 398) 86; Arambi V. Advance Beverages Ind. Ltd. (2006) All FWLR (pt.295) 581. He further insisted that the case of Alao v. Akano (supra), the tribunal relied on was not applicable.
He noted that evidence could be viva voce, or documentary and when the latter in itself was sufficient to establish facts, there would be no need for viva voce evidence and relied on the case of W.A Breweries Ltd. v. Savannah ventures Ltd. (supra). He posited that whether exhibits E – Z and 1 – 36 were signed, stamped or not need no further oral evidence as the defects would render the election in those areas inconclusive, citing, in support, the case of Sowemimo V. Awobajo (1999) 7 NWLR (pt. 610) 335.
He took the view that the tribunal’s refusal to evaluate those exhibits amounted to technicality and not substantial justice especially when there were glaring facts of non compliance with the Electoral Act, 2010 and INEC guidelines. He described the conduct of the tribunal as wrongful omission and urged the court to exercise its appellate jurisdiction to examine and evaluate those exhibits with a view to determining whether they substantially affected the overall-result. He relied on the case of Buhari v. Obasanjo (2005) All FWLR (pt. 273) 1. He reasoned that the tribunal’s failure to evaluate them occasioned a miscarriage of justice to the appellant as it could have reached a different conclusion on their legal effects on section 74 of the Electoral Act, 2010. He argued that the tribunal took the concept of dumping of documents too far. He stated that documents could amount to dumping when facts were not available in the pleading, which the documents were intended to establish or when the pleading contained no specific issues that the document could easily relate to. He persisted that those situations were iron-existent on the petition. He contended that the tribunal’s refusal to evaluate those documents rendered the principle of subpoena duces tecum useless.
On behalf of the first and second respondents, it was contended, by their learned senior counsel, that those exhibits, E – Z and 1 – 36, were tendered from the bar without any oral evidence through a witness to link them to specific aspects of the case of the appellant in the petition. He added that they were not examined in open court, either during examination – in – chief or cross – examination, to get their purport. He insisted that the tribunal was right when it refused to carry out an out of Court examination of those dumped documents, citing the cases of Terab V. Lawan (supra); Adegbuyi V. Mustapha (2010) All FWLR (pt. 532) 1753.
He took the stand that the evidence contained in those exhibits went to no issue because the appellant’s petition failed to state specific polling units and places where non-compliance occurred and refereed to the case of Amosun V. INEC (unreported) Appeal No. CA/1/EPT/GOV/01/2009, delivered on 08 March, 2010 at 77 – 78.
Also, learned Silk for the third fifth respondents noted that those exhibits were results for different polling units, wards and Local Government Areas and were tendered and dumped from the bar without any witness called to tie each result to a particular allegation. He referred to paragraphs 7 – 11, 19 and 21 of the petition wherein certain allegations were made. He contended that the allegation of wrong entries made at the polling units and collation levels of wards Local Government Areas and state required tying the results to each level which could only be done by witnesses. He insisted that those exhibits were dumped on the tribunal which had no duty to sort and examine each result out of court. He noted that the tribunal’s findings that none of the appellant’s witnesses gave evidence in respect of votes cast and to their misapplication were not challenged in the appeal.
ISSUE SEVEN
Under that issue, learned senior counsel for the appellant contended that the tribunal was wrong when it closed the appellant’s case three days short of the fourteen (14) days, provided by the Electoral Act, within which it was to proof its case; adding that the act of the tribunal resulted into denial of its right to fair hearing and miscarriage of justice. He narrated how the appellant commenced its case on 16/08/2011 and on 26/08/2011, the tribunal suo motu adjourned the case to 01/09/2011, for continuation of hearing, and counted the days from 26/08/2011, to 01/09/2011 as part of the appellant’s 14 days. He added that on 01/09/2011, the tribunal closed the appellant’s case when it was still within time for it to prove its case despite its application for adjournment to 02/09/2011 to enable it call the witness from WAEC to testify. He took the view that the tribunal ought not to calculate the days it suo motu adjourned the case as part of the appellant’s 14 days and that breached its right to fair healing. He relied on the cases of N.I.I.T. Zaria V. Dange (2008) All FWLR (pt. 445) 1785 at 180 3; Euke V. Nwakwoala (1981) 12 SC 301; Mohammed V. Kano (1963) 1 All NLR 424. He noted that once a party’s to right to fair hearing was breached, it would vitiate the whole proceedings no matter how well conducted, citing the case of N.I.I.T. Zaria V. Dange (supra).
It was his further contention that the tribunal’s refusal to allow the appellant summons the INEC officials to tender the ballot papers pleaded and listed as documents to be relied upon amounted to a breach of its right to fair hearing. He placed reliance on the case of N.I.I.T. Zaria V. Dange (supra). He referred to the appellant’s letter to the Tribunal sectary for issuance of subpoena which the tribunal endorsed “not to issue” on the face of it.
Contrariwise, senior learned counsel for the first and second respondents submitted that the tribunal was right to close the appellant’s case because 01/09/2011 was its 16th day since it commenced its case when it had only 14 days under paragraph 41 (10) of the First Schedule.
He drew the court’s attention to paragraph 46 (6) of the First schedule which gave the tribunal the power to close a party’s case if he failed to conclude within a reasonable time. He explained that right from 16/08/2011, the appellant was conducting its case in an unreasonable and tardy manner by asking for adjournment every day without complying with the directives of the tribunal to ensure its witnesses were present to enable it proceed diligently. He lamented that the appellant’s application for adjournment to on 01/09/2011 was for the tribunal to wait for the attendance of a witness from WAEC, an excuse he gave every day except on 26th August, 2011, reducing it to work at the dictates of the appellant.
He further submitted that it was an abuse of the Light of appeal for the appellant to argue an issue which had no record of any decision of the tribunal contained in the record of appeal. He maintained that there was no appellant’s letter in the record of appeal with the remark “not to issue”. He urged the court to strike out ground that gave rise to the issue for lack of jurisdiction. He pointed out that by paragraph 4 (5) of the First Schedule, the appellant was required to file a list of its witnesses to accompany the petition. He explained that the appellant’s list of witnesses, on page 8 of the record, did not include any official of INEC. He referred to the appellant’s motion of 11/07/2011 for additional witnesses wherein the Resident Electoral Commissioner was required to produce INEC data base, not ballot papers. He observed that the tribunal delivered its ruling on the motion on 19/07/2011 and refused the prayer to add the Resident Electoral Commissioner to the list of witnesses because neither the petition nor the affidavit justified the need to produce or tender INEC data base. He posited that the right to fair hearing did not give the appellant the right to be an out law by failing to furnish a list of its witnesses or subpoena witnesses it did not list.
For the third – fifth respondents, learned counsel enumerated the nine different days and occasions the appellant applied for adjournment before that of 1/09/2011 and insisted that the tribunal granted the appellant enough opportunity to present his case. He noted that the appellant’s 14 days elapsed on 30/08/2011. He posited that fair hearing had been interpreted to be synonymous with fair trial where every fair-minded observer who watched the proceedings should be able to come to the conclusion that the court was fair to all parties. He placed reliance on the cases of Unibiz (Nig.) Ltd. V. C.B.C.L. Ltd. (2003) 6 NWLR (pt. 816) 402; Isiyaku V. Master (2003) 5 NWLR (pt. 813) 443. He added that having regard to the proceedings and the provision of paragraph 41 (10) of the First Schedule, the appellant was given enough opportunity to present its case but failed to utilize it and the tribunal would not be blamed, citing the case of S & D. Construction Co. Ltd. V. Ayoku (2005) 5 NWLR (pt. 813) 278.
He reasoned that the point about the tribunal’s refusal to grant the appellant’s application to summon INEC officials was academic because the purpose of the summon was to produce and tender ballot papers used in the election and which ballot papers the appellant’s Counsel tendered in batches. He maintained that the allegation of breach of fair hearing, in relation to the complaint, ceased to be an issue since the ballot papers were produced and tendered.
ISSUE EIGHT
Learned senior counsel for the appellant submitted that the tribunal was wrong when it failed to consider the state of the pleadings of the parties as the respondents did not join issues with the appellant on paragraphs 18 and 19 of the petition; adding the comparison of the pleadings should have been done before consideration of evidence. He referred to the cases of Morohunfola V. Kwara Tech. (1990) 4 NWLR (pt. 145) 506; Bended Pilgrims Walfare Board v. Kawo (1995) NWLR (pt. 118) 126; Oduka v. Kasumu (1968) NMLR 28. He reproduced the averments in paragraphs 18 and 19 of the petition and insisted that the respondents did not join issues on them. He reasoned that those paragraphs were essential because the appellant’s prayers B and C were based on them. He referred to paragraph 15 of the first and second respondents’ reply and paragraph 7 of the third – fifth respondents’ reply and asserted that material allegations in pleadings must be specifically and expressly traversed, not generally traversed, otherwise the allegations would be deemed admitted. He relied on the cases of Eke V. Okwaranya (2001) FWLR (Pt. 51) 1974; Daggash V. Bulama (2004) All FWLR (pt. 212) 1666. He further submitted that a defence that was a bare denial was not a proper traverse and facts admitted need on further proof. He referred to the cases of Progressive bank Plc. V. Contact Point Holdings Ltd. (2001) FWLR (pt. 52) 2093; Mobil Producing (Nig.) Unltd. V. Uweme Dimo (2006) All FWLR (pt.313) 116. Finally, based on all those submissions, learned senior counsel urged the Court to allow the appeal.
On behalf of the first and second respondents, learned senior counsel contended that they joined issue with the appellant over those paragraphs by dening them. He noted that paragraph 18 merely stated in general terms that results were jettisoned without specifying the polling units so that the most they could do was to deny them. He, also, noted that paragraph 19 merely alleged that many results in Auyo and other Local Government Areas were altered without being specific on the results and polling units. He added that the principles of pleadings required, the appellant to be exact and concise so that the appellant’s use of words like “mant results” and “results” without naming exact and precise locations merely meant that only a general denial could be offered to the petition in support of that contention, he cited the case of Abubakar V. Yar’Adua (2008) 19 NWLR (pt. 1120) 1. Concluded that where a petitioner, the appellant, sought for declaratory reliefs in an election petition, he could only succeed on the strength of his case and not on the weakness of the defence nor would judgment be given upon default of pleadings or admissions. On the strength of those contentions, learned senior counsel urged the court to dismiss the appeal.
For the third – fifth respondents, learned senior counsel reproduced paragraphs 18 and 19 of the petition and paragraphs 6 and 7 of their reply and maintained that the allegations of alterations and non – compliance in the former were denied in the latter and that it was left for the appellant to prove them. Finally, based on those arguments, he urged the court to dismiss the appeal.
RESOLUTION OF THE ISSUES:
ISSUE SEVEN:
I decided to make this issue my first port of discourse because, the appellant’s quarrel therein hinged on the tribunal’s breach of its right to fair hearing by closing its case earlier than the prescribed time and refusing its application to summon the INEC official to tender ballot papers. By virtue of the provision of section 36(1) of the 1999 Constitution, as amended, a party has the inviolable right to ventilate his case in court of law on the twin principles of fair hearing – nemo judex in causa sua, nobody shall be a judge in his own cause, and audi alterem partam, – hear the other side.

It is now settled law that where a party’s right to fair hearing is eroded or trampled upon, then the whole proceedings of the court, no matter the brilliance and diligence injected into them, would be marooned in the miasma of nullity. This is a confluence point or median where the issue of lack of jurisdiction and lack of fair hearing meet. The litmus test for observance of fair hearing is that a Fair-minded person who watched the proceedings should conclude that the court was fair to all the parties. Fair hearing, a synonym of fair trial, imports giving parties to a case an equal opportunity and level playing ground to present their case, see O.O.M.F Ltd. v. NACB Ltd. (2008) 12 NWLR (Pt. 1098) 412; Leaders & Co. Ltd. V. Bamaiyi (2010) 18 NWLR (Pt. 1225) 329; Agbiti V. Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175; Unibiz (Nig) Ltd. V. C.B.C.L. Ltd. (supra); Isiyaku Master (supra); S & D Construction Co. Ltd. V. Ayoku (supra).

The vexed question then is: was the appellant denied its right to fair hearing by the tribunal’s closure of its case? In this regard, the provisions of paragraphs 41(10) and 46(5) and (6) of the First Schedule are of note and they respectively provide as follows:
41(10) – The petitioner in proving his case shall have not more than 14 days to do so and each of the respondents shall have not more than 10 days to present its defence.
46(5) – A party shall close his case when he has concluded his evidence and either the petitioner or respondent may make oral application to have the case closed.
(6) Notwithstanding subparagraph (5) of this paragraph, the tribunal or court may suo motu where it considers that either party fails to conclude its case within a reasonable time close that party’s case.”
To do justice to this nagging question, I will construe the provisions of these two paragraphs holistically in order to garner the very intention of the legislators who made them. Interestingly, the words of the provisions are clear and unambiguous and I will deploy the literal canon of interpretation to them, since the ancient and constant rule is applicable to rules of courts, by giving them their ordinary, plain and grammatical meanings, see Berliet v. Kachalla (1995) 12 SCNJ 147; Uwazurike v A.-G., Fed. (2005) 3 NWLR (P 1035)1; Kraus Thompson Org. Ltd v. N.I.P.S.S. (2004) 17 NWLR (Pt.901) 44; Dingyadi V. INEC (No.2) (2010) 18 NWLR (Pt.1224) 154.
The provision of paragraph 41 (10) of the First Schedule clearly allots 14 days to the appellant to conduct its case. By subparagraph (5) of paragraph 46 of the First Schedule, the appellant was at liberty to close its case on conclusion of its evidence or on the application of the respondents. Nevertheless, sub-paragraph (6) of paragraph 46 of the First Schedule gives the tribunal the power, on its own volition, to close the case of any party, who fails to conclude his case within a reasonable time. It must be pointed out that the provision of subparagraph (6) is superior to and overrides that of subparagraph (5) of paragraph 46 because of the use of the word “notwithstanding”. With the word “notwithstanding” an adverb, opening the provision of subparagraph (6), the prescription of subparagraph 5 of paragraph 46 of the First Schedule must play a second fiddle to the former.
In other words, subparagraph (5) is subordinate to subparagraph (6), see NDIC Okem Ent. Ltd. (2004)10 NWLR (Pt. 880) 107. In the case of NNPC V. Lutin Invest. Ltd (2006) 2 NWLR (Pt. 965) 506 at 529 wherein, kalgo, JSC, confirmed that: “The word or expression “Notwithstanding” is a term of exclusion in legal drafting; it simply means “inspite of or irrespective of or disregarding.”
A community reading of the above provisions pointedly signify that the provision of subparagraph (6) of paragraph 46 of the First Schedule holds dominion over the other two, id est, paragraph 41(10) and 46 (5) of the First schedule.
I have browsed through the proceedings during the period the appellant conducted its case spanning from pages 723 – 811 of the printed record. That was from 16/08/2011 to 01/09/2011. During that period, the tribunal sat for 9 days, 16/08/2011, 17/08/2011, 18/08/2011, 22/08/2011, 23/08/2011, 24/08/2011, 25/08/2011, 26/08/2011 and 01/09/2011 and the appellant made applications for adjournment for eight (8) days excepting 25/08/2011, see page 776 of the record Indeed, the appellant, with due respect, started with an application for an adjournment and terminated with the same. It would appear that all the warnings for expeditious disposal of the petition fell on deaf ear of the appellant. Curiously, the respondents opposed those application for adjournment. Thus, the tribunal, patiently, fulfilled the requirement of the law by providing the appellant with the conducive atmosphere or environment to present its case, but it, for reasons best known to it, decided to be tardy and dilatory in its presentation. In my view, the tribunal cannot be blamed in any manner whatsoever. In the case of Newswatch Comm. Ltd. V Atta (2006) 12 NWLR (Pt.993) 144 at 170-771, Tobi JSC stated:
It is the duty of the court to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the court cannot turn around to accuse the court of denying him fair hearing …
See, also, Oyegun v. Nzeribe (2010) 7 NWLR (Pt.1194) 577; F.H.A. v. Kalejaiye (2010) 19 NWLR (Pt.1226) 147.

The appellant, via its learned senior counsel, castigated the tribunal on the reason that three days were counted out of the 14 days donated to it by the provision of paragraph 41(10) of the First Schedule. I am completely at odds with them in that unwarranted strictures. To begin with, by the precise and explicit provision of that subparagraph, the 14 days should run in a continuous string, not intermittently. This is in keeping with the provision of section 15(4) of the interpretation Act, Cap. 23, Laws of the Federation of Nigeria, 2004, since the 14 days are beyond 6 days so that holidays should be computed among the allotted 14 days. Besides, the prescription of paragraph 46(6) of the First Schedule supercedes and predominates that of paragraph 41(10) of the First Schedule.
Also, it was the contention of the appellant that the tribunal closed its case against its attempt to call WAEC official on 02/09/2011. From the entire record of proceedings relating to the appellant’s presentation of its case, which were dotted with tons of applications for adjournments, it seems to me that the tribunal was judicially magnanimous, fair and accommodating to it in all ramifications. What the appellant wanted to achieve by its incessant applications for adjournment was to hold the tribunal to ransom, an injudicious act that had been roundly deprecated by the courts, see M.M.S. Ltd v. Oteju (2005) 14 NWLR (Pt.945) 517. I cannot be a party to putting a court on the spot. It is for the above reasons that I, absolutely, see nothing wrong when the tribunal on 01/09/2011, refused the appellant’s unending application for adjournment and foreclosed it from further presentation of its case. There must be an end to presentation of a party’s case. By virtue of the provisions of paragraph 4(10) and 46(6) of the First Schedule, the appellant cannot present its case ad infinitium. It must not be forgotten that the tribunal was within a time frame of 180 days, as decreed by section 285(6) of the Constitution, as amended, to conclude the petition otherwise it would lapse to the detriment of the appellant. I endorse the tribunal’s attitude.
One outstanding point the appellant raised, under this breach of its right to fair hearing, was that the tribunal refused to treat its letter to its secretary of the tribunal for the issuance of subpoena to officials of WAEC rather it was endorsed “not to issue” on the face of it, learned senior counsel for the first and second respondents met the appellant with all objection that the record of appeal did not contain any letter minuted with the remarks: “not to issue”.
I think that there is a considerable force in that objection and I fall in with it. I have burrowed through the length and breadth of the mountainous 923-page record of appeal with a fine tooth comb. Strangely, I cannot find or stumble on any letter or document bearing the inscription “not to issue”. Since the alleged letter is nowhere to be found in the printed record, then it cannot form the substratum upon which the appellant could predicate its allegation of denial of fair hearing. The reason is not farfetched. Parties, inclusive of the appellant herein, and the court are bound by the record of appeal, none is allowed to go outside the perimeter of its content. I am without the necessary vires to factor into the record of this appeal what is, omitted nor is to exclude from it what included. To do so will be an affront to the law, see Ogidi v State (2005) 5 NWLR (Pt.918) 286; O.O.M.F. Ltd. v. NACB Ltd (supra); Ekpemupolo v. Edremoda (2009) 8 NWLR (Pt.1142) 166; International Bank Plc v. Onwuka (2009)3 NWLR (Pt. 1144) 462; Sapo v Sunmonu (2010) 11 NWLR (Pt. 1205) 3741. In the case of Orugbo v. Una (2002)16 NWLR (Pt.792) 175 at 206-207, Tobi, JSC opined:
…An appellate court has no jurisdiction to read into the record what is not there and it equally has no jurisdiction to read out of the record what is there. Both are forbidden areas of an appellate court, if one may use that expression. An appellate court must read the record in its exact content and interpret it. Of course it has the jurisdiction to decide whether on the face of the record and on the cold facts the decision was proper or not.
Given the fact that the objection has merit, every other submission, from all the learned senior counsel for all the feuding parties, becomes idle and unworthy of any consideration. This prong of the allegation of breach of fair hearing made by the appellant is rendered incompetent for want of records. Accordingly, I strike it out. With regard to the other prong, I had found a finding I will not upset, that the tribunal was quite on the right track when it closed the appellant’s case. In all, I resolve the issue seven against the appellant.
APPLICATION TO STRIKE OUT GROUND SIXTEEN OF THE NOTICE OF APPEAL.
Prior to outlining the issues for determination, learned senior counsel for the first and second respondents took a swipe against ground sixteen of the notice of appeal because no issue was framed from it. Learned counsel for the appellants took the stance that issue six was formulated from that ground.
I have given an intimate reading to the said ground sixteen with its particulars, sought to be impugned, contained on pages 918-919 of the printed record, along side the issue six said to sprout from it. In my view, there no is tinge of no linkage, in terms of relationship and not reference, between the said issue six or any other issue with the ground sixteen being attacked. In other words, the said ground sixteen did not generate any issue. The law is now settled that a ground of appeal must give birth to an issue for determination or run the risk of being deemed as abandoned and liable to be struck out, see Odunze V. Nwosu (2007) 13 NWLR (Pt. 1050) 1; Aderibigbe V. Abidoye (2009) 10 NWLR (Pt. 1150)592; Ukiri V. Geco. Prakla Ltd. (2010)16 NWLR (Pt. 1220)544; Okonobor V. D.E & S.T Co. Ltd. (2010)17 NWLR (Pt. 1221) 181: Since the ground sixteen runs foul of this hallowed principle of law, I have no option than to weed it out from the notice of appeal. Consequently, the said ground sixteen is struck out on account of abandonment.
ISSUE ONE.
The nucleus of the issue is whether the tribunal rightly rejected the ballot papers tendered by the appellants. The appellant and the respondents, naturally, locked horns on the issue. The former took the stance that the tribunal was wrong while the held, tenaciously, to the view that it was right.
During the course of proceedings, on 26/08/2011, the appellant, via its learned senior counsel, applied to tender all the ballot papers, produced and given to them by the third respondent, used in the governorship election in Jigawa State. The applications were made in batches or piecemeal and objections taken. The tribunal upheld all the objections and rejected them, see pages 780-804 of the records. The chief reasons, in precise form, for the tribunal’s rejection of those ballot papers were that they were not listed as documents to be relied on except for Birmin Kudu, Gwaram, Ringing Taure and Gwa Local Government Areas and that they were not pleaded regarding all the 27 Local Government Areas of Jigawa State, see pages 789-792-793, 794, 795, 802 – 803 and 804 of the record for the various rulings of the tribunal.
For a balanced resolution of the issue, the provisions of paragraphs 4 (5) and 41 (8) of the First Schedule will be on hand. They read:
4(5) The election petition shall be accompanied by-
(c) copies or list of every be relied on at the hearing of the petition
41 (8) Save with leave of the Tribunal or Court, after an applicant has shown exceptional circumstances, no document, plan, photograph or model shall be received in evidence at the hearing of a petition unless it has been listed or filed along with the petition in the case of the petitioner or filed along with the reply in the case of the respondent.
In spirited bid to conform to the provision of paragraph 4(5) (c) of the First schedule, the appellant, on page 31 of the record of appeal, listed as item “II) Ballot paper used in the Governorship election for Birnin Kude, Gwaram, Ringim, Taura, Gwiwa Local Government Areas of Jigawa State”. For the aforementioned Local Government Areas, the appellant sufficiently satisfied the second limb of the provision of paragraph 4 (5) (c) above which mandates it to list the documents to relied upon at the hearing. For the other remaining 22 Local Government Areas, out of the 27 Local Government Areas that make up the Jigawa State the ballot papers regarding the election therein can only pass into evidence with the leave of the tribunal sought and obtained by the applicant after demonstrating exceptional or unusual circumstances. That is the clear purport of the provision of paragraph 41(8) of the First Schedule reproduced above. It is the law that where leave, which in legal parlance means permission, of court is required before institution of an action or filing any process or in doing anything in any proceedings, that leave must be sought and procured otherwise the performed act is vitiated, see Otu v. ACB Int’l Bank Plc (2008) 3 NWLR (Pt.1073) 179; BBN Ltd. V Olayiwola & Sons Ltd. (2005) 3 NWLR (Pt.912) 434; Agip (Nig) Ltd. v. Agip Petroli Int’l (2010) 5 NWLR (Pt.1187) 348.
A procurement of the indulgence of the tribunal, to enable it receive in evidence the ballot papers for those other 22 Local Government Areas, becomes imperative when viewed from the angle that the prescription of paragraph 41(8) of the First Schedule uses the word “shall” which, in the very eyes of the law, commands mandatory obligation against their receipt in evidence, see Ugwu v. Ararume (2007) 12 NWLR (Pt.1048)365; Agbati v. Nigerian Navy (supra); Taiwo V. Adegboro (2011) 11 NWLR (Pt.1259) 562. It follows, in my view, trial the non-listing of the ballot papers for the 22 Local Government Areas, coupled with the failure to obtain the leave of tribunal in the glaring face or presence of the word “shall”, the appellant was not at home with the law in its application for further admission. The tribunal was, perfectly, correct to reject them.
The other reason offered by the tribunal for rejecting the entire ballot papers was that they were not pleaded. On page 792-793, the tribunal ruled in part thus:
The documents sought to be tendered are ballot Papers … Are the documents pleaded in the Petition, which is one of the conditions for admissibility of a document? In our ruling of 16/08/11, where we have stated that facts relevant to a fact in issue must be pleaded, and this regard, no such facts as related to the Maje ward of Taura are therein pleaded, as to make such admissible, we equally wade (sic) reference to the facts of the documents not being CTCs that ordinary (sic) could have been tendered from the Bar, but not being such cannot be admitted… The tendering of the documents… is refused and shall be marked.
On page 8 of the appellant’s brief of argument, paragraph 4.02, it mentioned paragraph 21 of the petition where the facts about ballot papers were pleaded. I will, at the expense of prolixity, but borne out of necessity, pluck that paragraph 21 from page 5 of the record appeal where it is lodged. It states:
21) Your petitioner further avers that in addition to the vote allocation that there were multiple thumb printing by PDP agents duly supported by the government officials and creation of non-exiting polling units. Your petitioner will seek the assistance of forensic exparts (sic) to establish election rigging, bribing at various wards of the 27 Local Governments of Jigawa State.
I, with due reverence, beg to differ with the appellant that the averments in above paragraph showcase or disclose facts relating, even remotely, to the issue of ballot papers. In law, a party may plead a document he will rely on at trial, ex abundanti cautela, in his pleadings or petition, but must narrate or aver facts surrounding and linking such a document. Interestingly, the appellant, via its learned senior counsel, on page 8 line 13-14 of its brief of argument, admitted this position of the law when it submitted. “Further more, documentary evidence need not be specifically pleaded so long as facts by which a document is covered are pleaded. See ZENON PETROLEUM & GAS LTD. V. IDRISIYYA (NIG.) LTD (2006) ALL FWLR (Pt. 312)212 at 2143, OSENI V. DAWODU (1994) 4NWLR (Pt. 339) 390” For the avoidance of doubt, I have leafed, thoroughly, through all the other paragraphs of the petition and I cannot see my way clear where facts relating to ballot papers are averred. I dare say, the entire petition is bereft of such facts what, to all intents and purpose, are desiderata for the admissibility of the ballot papers.
The contention of the appellant that tire ballot papers were consented to during pre-hearing session is of no moment here. This is because they are, as dissected above, inherently inadmissible and by law parties and courts cannot by their acquiescence admit inadmissible evidence, see Abubakar V. Joseph (2008) 13 NWLR (Pt.1104) 307. At any rate, even if the tribunal had, by oversight or mistake of law, admitted them in evidence, they would not have attracted or earned any legal value for want of improper pleading, see Olubodun V. Lawal (2008) 17 NWLR (Pt. 1115) 1 at 34.
Flowing from the above analyses, the appellant’s applications to tender those ballot papers, no matter the angle it is viewed from, met a brick wall. For the ballot papers outlined for 5 Local Government Areas, on page 31 of the record, the non-satisfaction of the sacrosanct requirement of pleading made them inadmissible in evidence. For those ballot papers meant for the other 22 Local Government Areas, it was double jeopardy in that they were neither listed nor pleaded to qualify and be welcomed into evidence. In the light of these reasons, I hold the view that the tribunal was not incorrect and within the bounds of the law when it refused to receive those ballot papers in evidence. Accordingly, I resolve issue one against the appellant.
ISSUES TWO, THREE AND FOUR:
These three issues are intertwined. I will, therefore, resolve them together. The meat of those these issues, which are the fulcrum of the petition, is whether the appellant proved that the first respondent was not qualified to contest the election. They raise a litany of side issues and I will deal with them one after the other. Here, the provisions of sections 177 (d) and 182 (l) (j) of the 1999 Constitution, as amended, are relevant. They respectively provide as follows:
177 A person shall be qualified for election to the office of Governor of a State if-
(d) he has been educated up to at least School Certificate level or its equivalent 188 (I) No person shall be qualified for election to the office of Governor of a State if-
(j) he has presented a forged certificate to the Independent National Electoral Commission –
It was the submission of the appellant that the first respondent or any other candidate must not necessarily pass school certificate to be qualified for an election into the office of a Governor of a State. I am in complete agreement with that view point on the authorities of the cases of Imam V. Sheriff (supra); Chukwu V. Icheonwo (1999)4 NWLR (Pt. 600) 587. The appellant’s grouch, however, is that the first respondent did not attend school to at least school certificate level and he presented a forged WAEC certificate to the third respondent. The parties expressed discordant views on whose burden it is to prove the non-qualification of the first respondent. In paragraphs 11 (i) and (ii), 12, 13, 14 and 15 of the petition, on pages 3-4 of the record, the appellant, extravagantly, averred:
11), FACT SUPPORTING THE GROUNDS Your petitions contends that the 1st Respondent was not qualified to contest the said election in that:-
i) He was not validly nominated as his nomination was based on false information supplied and accompanied with false declaration as to the Secondary School attended.
ii) He is not educated up to at Least School Certificate and has presented a forged WASC Certificate to the 3rd Respondent…
12) In the premise of the foregoing paragraph (i) above, the petitioner will contend that the 1st Respondent lied on oath and was not qualified to contest the election and that the votes cast at the election for the 1st Respondent are invalid and void. The nomination form and accompanying affidavit and the forged WAEC certificate No. 5108044 attached thereto are hereby pleaded. Also pleaded are correspondences and reports from the Schools and examination bodies allegedly attended?
13) Your Petition will at the trial of this petition rely on (a) list of the West African Examination Council registered candidates from Government College Zaria (now Barewa College) for the year 1966 (b) the certified True Copy of its WAEC Certificate index No.5108046 and No. C3005655 which are hereby pleaded.
14) Your petitioner will also at the trial of this petition rely on (a) the Register of the students of Government College Zaria (now Barewa College Zaria) between 1962- 1966 (b) the Barewa College School Album for the same period, which is hereby relied upon.
15) Your petitioner avers that it is not logical that West African Examination Council could award West African School Certificate (not GCE) to a three year student of the Government College Zaria and therefore that the 1st Respondent’s alleged certificate is forged and or fake.
On the contrary, the first and second respondents in paragraphs 4-14 of their joint reply, contained on pages 148- 149 of the record, vehemently denied the appellant’s allegations and maintained that the first respondent attended the college between 1962-1966, sat and obtained WASC No.3005655.
From the tenor of the appellant’s averments in the reproduced paragraphs II (i) and (ii), 12, 13, 14 and 15 of the petition, it saddled itself with the initial herculean legal burden to prove that the first respondent was never educated to at least school certificate level, a student of the college for 5 years who sat and obtained West African School Certificate and that he presented a forged West African Certificate to the third respondent.
In this wise, the provisions of sections 131, 132, 133, 134 and 135 of the Evidence Act come in handy and they are reproduced verbatim al literatim, thus:
Burden and standard of proof
131 (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he assert must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
132 The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
133(1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.
134 The burden of proof shall be discharged on the balance of probabilities in all civil proceedings.
135 (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person had been guilty of a crime or wrongful act is, subject to the provisions of section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the accused-
When the foregoing provisions are married with the copious averments made by the appellant, it is beyond second guess or conjecture that it asserted the existence of certain facts; the first respondent’s non-education to at least school certificate level and presentation of pseudo-certificate to the third respondent. Again the petition must fail if no evidence is given by either side. The law compels him to prove them on the balance of probabilities and thereafter the fluctuating evidential burden will swing to the first respondent. I think the appellant woke up to that legal task when it called PW1, PW4 and tendered the attachment exhibit A and D whether their evidence were credible was a different cattle of fish. The bottom-line is that the tribunal did not wrongly assign the initial burden of proof to it, having invited same unto itself by the tone of its petition; see Haske V. Magaji (supra); Buhari V. INEC (supra); UBN Ltd Ozigi (supra); Buhari V. INEC (supra).
For the avoidance of doubt, let me even take it that the appellant’s assertion, that the first respondent was not qualified to contest the election, is a negative one which, in law, does laden it with any or initial burden of proof, see Agagu v. Mimiko (2009) 7 NWLR (Pt.1140) 342. That will still not relieve it of the burden of establishing those weighty allegations after the first respondent had placed exhibit B before the tribunal.
That brings me to the consideration of whose responsibility it is to call the WAEC officials on the authenticity of exhibit B. As already noted, the appellant called PW1 and PW4 who tendered attachment to exhibit A and exhibit D respectively, all to establish that the first respondent was not educated to at least school certificate level. The first respondent tendered exhibit B, which is an exact replica of the attachment to exhibit A, to demonstrate that he was educated to at least school certificate level. In my opinion, the first respondent having produced exhibit B, either to debunk the evidence of PW1 or as initial burden to prove his qualification, the next burden will fluctuate or shift to the appellant to show that the said exhibit B, West African School certificate and General certificate of Education No. C3005655 awarded by the West African Examinations council with index No. 5108044 was a phantom one. The first respondent having produced or tendered exhibit ‘B’ in discharge of either an evidential or an initial burden bestowed on him by law, the same cannot keep on hunting him till after the appellant had discharged its own burden of showing that the exhibit was/is phoney document. Simply put the burden to puncture the validity of exhibit B resided in the appellant because it was the party that would lose if no evidence was given as decreed by the sacred prescriptions of sections 132 and 133 (2) of the Evidence Act, 2011.
Incidentally, the appellant neglected to do that and it was a costly failure that kept on chasing it to this court. Lets I forget, the case of G. Chitex Ind. Ltd. V O.B.I. (Nig) Ltd (supra), on which appellant’s learned counsel placed high premium on this point, is distinguishable and inapplicable on grounds of facts differentials. It would have been relevant if the appellant had successfully challenged and impugned the authenticity of exhibit B by calling the WAEC officials to disown it.
I, now, proceed to thrash out the stubborn point as to whether exhibit B is a public document. The appellant and the respondents could not square up with themselves on this point. Whereas the appellant maintained that it was a public document that needed certification, the respondents took the opposite stance. Both parties made a heavy weather of their respective positions. The provisions of sections 102 and 103 of the Evidence Act, 2011 classified documents into public and private in the manner following:
Public and Private Documents
102. The following documents are public documents-
(a) documents forming the official acts or records of the official acts –
(i) of the sovereign authority
(ii) of official bodies and tribunals
(iii) of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere;
(b) public records kept in Nigeria of private documents.
103. All documents other than public documents are private documents.
When exhibit B is placed side by side with the above provision, it is unarguable that it exhibits all the necessary features and halemarks of a public document as x-rayed in the above satutory provisions. It was an official act made by an official body, the West African Examination Council, which kept record of it. Nothing can be more official than a school certificate which exhibit B personifies. In short, it is a perquisite of an official act and record, see Bayo v. Njiddah (2004) 8NWLR (Pt.876)544.
Let me add, pronto, that the case of Bayo v. Njiddah (supra) which is later in time is preferable to that of Ominisi Ukana V. C.O.P (supra), both of which were decided by this court. The case of Abdul v. Benue State University (supra), also a decision of this court, was not grounded on a certificate, but a private letter which the court rightly ruled to be a private document in the circumstances of that case. On that premise, I am at one with the appellant that exhibit B is a public document.
Be that as it may, it is a barren or pyrhic victory for the appellant. The reason is simple. The document, exhibit B, which was admitted in its undiluted original form, fits in squarely as a primary document, a public one, by virtue of sections 85 and 86 (1) of the Evidence Act, 2011. It is admissible in evidence in that raw original state. On this, I draw on the case of Onobruchere V. Esegine (1986) 1 NWLR (Pt.19)799 at 808 where the admissible of exhibit E was challenged or being uncertified public document and Oputa, JSC, held that: “Exhibit E will be admissible under section 93 (1) of the Evidence Act (now section 86 (1) of the Evidence Act 2011) if it is the original”. See, also, Iteogu V. LPDC (2009) 17 NWLR (Pt. 1171) 614. The other fascination submissions of the appellant against the admission of exhibit B are castrated by the provisions of paragraphs 18(8) (a) and 41 (2) of the First Schedule which allow for admission of admissible documents by consent of parties I, therefore, hold that exhibit B was properly counted in evidence and I welcome it to this appeal.
Next, the appellant picked holes in the tribunal’s assessment, examination and evaluation of the evidence of PW 4 and exhibit D, tagging them as lopsided. The appellant called, PW4, Mohammed Abass Aliyu, the Principal of the college, using a subpoena, exhibit C, and he gave evidence on 18/08/2011. He tendered the personal file of student NP 1528, first respondent, exhibit D, see page 744 of the record. Under cross-examination, on pages 748 – 749 of the record, he hearing:
Student No. 1522 of Barewa College is Sule Lamido (1st Respondent). There are report sheets of that candidate from 1962 – 1966. Those reports are from FORM 1- FORM 5. I have told the tribunal that I because (sic) the principal of the school, from 2009. I have never seen any record even if it is there, that the student – Sule Lamido was expelled from the college. I have not seen that record to the effect that the student Sule Lamido dropped out from the school … In Exhibit D – there are carbon copies of examination results. It is not the practice of WAEC to give you carbon copies of Examination Certificates. The only copies given are original copies to be transmitted to the student who sat for the examinations.
The tribunal paraphrased the evidence of PW4 as elicited from cross-examination, sees pages 871-872 of the record, and rightly stated that those pieces of evidence are worthy to be acted upon by it. It, meticulously, reviewed the contents of exhibit D, see page 874 of the record. On pages 875 – 876, it came to the conclusion that:
We have equally carefully gone through the said Exhibit D, and are of the view that it is in tandem with the evidence of the PW4, called by the petitioner as to what should be in a student’s file.
There is no evidence before the Tribunal that the Reports for Forms 4 and 5, amongst other being challenged by the petitioners, do not emanate from Government College, Zaria now Barewa College, Zaria.
There is also no nexus between the evidence of the PW1, and Exhibit D, which we hold is not supportive of the petitioner’s case. Exhibit D was tendered by the petitioner’s witness, defeated the purpose for which it was tendered to achieve, as it was more in favour and strengthened the case of the 1st Respondent rather than that of the Petitioner.
There are no Records before the Tribunal to show that the 1st Respondent dropped out of School or was expelled. The best evidence should have come from the PW4, the present Principal of Barewa College, Zaria, former Government College, Zaria. We shall therefore attach weight to the said Exhibit D, and probative value to the evidence of the PW4 as are relevant to this issue as earlier stated.”
As a matter of fact, I cannot fathom out of the appellant’s grouse given the above analyses and conclusions reached by the tribunal in respect of the evidence of PW4 and exhibit D. As correctly stated by the tribunal, the evidence of PW4, extracted under the crucible of cross-examination, is quite inimical to the case of the appellant. It rather lend support to the case of the first respondent that he attended the College from 1962-1967 in satisfaction of the provision of Section 177(d) of the Constitution, as amended. Needless to say that evidence gleaned from the furnace of cross-examination is as potent as that in chief provided it is covered by pleadings as in the first and second respondents’ joint reply, see Gaje v. Paye (2003) 8NWLR (Pt.823) 583, Akomolafe v. Guardian Press Ltd. (2010) 3 NWLR (Pt.1181) 338.
The appellant implored this Court to re-appraise the content of exhibit D on the ground that it was poorly examined by the tribunal. That invitation is well founded as the law gives me the unbridled licence to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt.903) 544; Ayuya v. Yonsin (2011) 10 NWLR (Pt. 1254) 135; Okoye v. Kpajie (supra); Bayo v. Njiddah (supra), Iwuoha v. NIPOST Services Ltd. (supra). In due obeisance to this rule of law, I have given a microscopic examination to the said exhibit D. To start, the name of the first respondent, Sule Lamido, conspicuously appears on all the pages of the 20 page document. There is a document, dated 11/08/1967, titled, TO WHOM IT MAY CONCERN, showing the result of the first respondent and it tallies with exhibit B. There is an application, dated 01/08/1967, wherein the first respondent asked the principal of the college to give him a document to prove that he attended the school. I found another document, dated 25/04/1967, addressed to the Nigerian Railway Corporation showing the WAEC result of the first respondent. Again, the result in that document is in the mould of that in exhibit B.
Furthermore, there are 10 result sheers with different dates and only one of them does not have subject score marks on it. Another document, dated 11/4/67, emanated from the Nigeria notice when the first respondent applied to enlist in the Nigeria Police as a Cadet Sub-Inspector. Next is a medical report, dated 17/01/1962, showing that the first respondent was medically fit to enter the college. There is another confidential document meant to be completed by a father of the first respondent or anybody standing in loco parentis to him for entry into the college. The other is a common entrance examination sheet. Another document bears the first respondent’s School No. 1528 with the name of college. Lastly, there is a document which indicates the house he was in the college.
I am afraid; the aforementioned documents in exhibit D go a long way to reinforce the fact that the first respondent attended the college. The exhibit has not given any boost to the case of the appellant as found by the tribunal. I hold that the evidence of PW4 and exhibit D were well assessed by the tribunal. I find the assessment and findings of the tribunal therein unassailable and I dare not tinker with them.
For completeness, it is germane to examine whether or not the appellant proved the allegation of forgery of WAEC certificate No. 5108044 by the first respondent and his presentation of same to the third respondent. The latter is prohibited by the provision of section 182(1) (j) of the constitution, as amended, which made it a disqualifying factor or act. In the first place, forgery is making a false document and includes a document which tells a lie about itself, see Babalola v. State (1989) 4 NWLR (Pt. 115) 264 at 277; Nigerian Air Force v. Kamaldeen (2007) 7 NWLR (Pt.1032) 164. Forgery is a foul crime in our criminal justice system; see section 366 of the penal code and section 465 of the criminal Code.
Going by the wordings of the appellant’s petition, the commission of the heinous crime of forgery of exhibit B by the first respondent is directly in issue in the petition so that the appellant is laden with the burden to prove it beyond reasonable doubt as ordained by the stipulation in section 135(1) of the Evidence Act, 2011. Granted that proof beyond reasonable doubt is not proof beyond all shadow of doubt, however, the appellant must adduce cogent and pungent evidence as to leave a remote probability in favour of the first respondent that can be dismissed with a sentence, “of course it is possible, but not in the least probable” that he forged exhibit B and presented same to the third respondent. Put differently, the appellant must produce evidence strong enough to drown’ the first respondent’s constitutional presumption of innocence and make him an owner of the mens res and acteus reus of that forgery, see Agbo v. State (supra); Michael v. State (2004) 13 NWLR (Pt.1104) 292; Bolanle v. State (2009) 18 NWLR (Pt.1172) 1; Afolalu v. State (2010) 16 NWLR (Pt.1220) 584; Ebeinwe v. State (2011) 7 NWLR (Pt.1246) 402.
Alas, the evidence led by the appellant ran short of the required standard of proof beyond reasonable doubt.
What is more, the first respondent tendered exhibit B which PW1, admitted under cross-examination, that it is a siamese twin of the attachment to exhibit A. Certificate is “A written statement attesting some fact, esp. the status and qualifications of the person holding it”, see the New Webster’s Dictionary of English Language, International Edition, page 161. This definition agrees with that offered by David Hay in Words and Phrases Legally Defined cited by the first and second respondents’ learned senior counsel. Exhibit B, when tied to the contents of exhibit D and the evidence of PW4, demonstrates that the first respondent attended the college. The exhibit came to being in 1967, about 44 years old. At that age, in the absence of any rebuttal evidence from the appellant, it enjoys the presumption that those who signed it are the owners of the signatures as allowed by section 155 of the Evidence Act, 2011. Also, being an official document earns it the presumption of regularity that formal requisites for its validity, attendance of the college, were complied with as permitted by section 168 of the Evidence Act, 2011. The exhibit carries the name of the first respondent and he is entitled, in the absence of contrary evidence, to benefit from the presumption of the law in line with the case of Madu v. Madu (supra).
In the aggregate, in the light of the above expositions, I will not hesitate to resolve issues two, three and four against appellant.
ISSUE FIVE
That issue centres on whether DW1 and DW2 were tainted witnesses whose evidence were wrongly evaluated. The first and second respondents fielded DW1 and DW2. DW1 was Aminu Ibrahim Ringim. He was the chief of staff in the government of the first respondent. DW2 was Muktari Tukur and a classmate of the first respondent in the college.
Are the two witnesses, DW1 and DW2, tainted witnesses? I have my doubts.
In the case of Adetola v. State (1992) 4 NWLR (pt.235) 267 at 273, Omo, JSC, said:
A “tainted” witness has been described as a witness who is either an accomplice or who by the evidence he gives may and could be regarded as “having some purpose of his own to serve….The Supreme Court has held that the evidence of such a witness should be treated with considerable caution and be examined with a tooth comb.
See, also, Ojo v. Gharoro (supra); Moses v. State (2006) 11 NWLR (pt.992) 458; Omotola v. State (2009) 7NWLR (Pt.1139) 148; Olaiya v. State (2010) 3 NWLR (Pt. 1181) 423.
When the evidence of DW1 is married with the above definition, it seems clear to me that he, being an employee of the first respondent’s government, is far from being a tainted witness. I drum up support from the position of the law, as sanctified by the Supreme Court, in the case of Ojo v. Gbaroro (supra), that an employee cannot be classified as a tainted witness to his employer. DW2, a classmate of the first respondent in the college, is not an accomplice in the allegation of forgery peddled against the first respondent by the appellant. Ditto for DW1 too. For not being accomplices or partners in the alleged offence of forgery, then the tribunal was not obliged to treat their evidence with circumspect. At any event, the porous and incredible evidence of PW1, PW2 and PW3 and the supportive evidence of PW4 and the attachment to exhibit A and exhibit D exculpated or exonerated the first respondent from any offence of forgery of exhibit B. The consistent testimonies of DW1 and DW2, which I join the tribunal crown with the toga of credibility, were mere surplus requirements. That is to say, the appellant’s case did not take off from the ground to necessitate them. In the end, I resolve, the issue five against the appellant.
ISSUE SIX
The focus of that issue is that the tribunal wrongly refused to consider exhibits 1 – 11, E – Z and 1- 36 tendered by the appellant. The parties were divergent on the correctness or otherwise of the finding of the tribunal on this critical issue. The appellant, persistently, insisted that those documents having been admitted in evidence, the tribunal was bound to consider them and bemoaned the tribunal for the failure Contrariwise. The respondents aligned themselves with the tribunal’s non consideration of them as being in tune with the law. The said exhibits E Z and 1-36 were certified true Copies of forms EC8A, EC8B, EC8C, EC8D and EC8E for the 27 Local Government Areas, of Jigawa State tendered by the appellant from the bar. The tribunal refused to examine them and, on pages 892 – 893, lines 1 – 36, of the record, held:
None of the witnesses called by the Petitioner gave evidence in respect of the votes cast in the election. The Petitioner did also not call witnesses to testify as to the misapplication of the votes scored by the candidates at the election. It is settled law that a party relying on documents in proof of his case must specially, relate each of the documents to that part of his case in respect of which the document is tendered in support of his case. That is, there must be a link between the document and the specific area of his case. No Court will assume the responsibility of lying (sic) each of the bundle of documentary exhibits to specific aspects of the case for a party when the party has not himself done so. See the following:
1) All Nigeria People’s Party V. Independent National Electoral Commission & 21 Ors. (2010) 13 NWLR (pt. 1212) P. 549 at Pgs. 597, Paras. A-B, 620 – 621, paras. H-B
2) Onmeje V. Otokpa (1999) 4 NWLR (pt. 600) Pg 519 at 528.
It will be an infraction of the right to fair hearing if the Court or Tribunal engages itself in the recess of its chambers to fish out or guess which documents relates to a particular aspect of the case of a party; such a duty ought to be carried out in the open Court by the party. See the case of All Nigeria Peoples’ Party V. Usman (supra) (2009) All FWLR (pt 463) 1292 pg. 1337 paras. A-B. Documents are not objects that can be cross-examined and therefore oral evidence must be called in support thereof. See the case of Eze V. Okologu (supra) (2010) 3 NWLR (pt. 1180) 183 p. 211 para. A. In view of the fact that the Petitioner did not call witnesses to testify in relation to the FORMS tendered and who would have been subjected to cross-examination by the Respondents’ Counsel, the Tribunal can not therefore attach any weight to the Exhibits above listed.”
In the first place, the appellant, through its learned senior counsel, at the dawn of its brief of argument, on page 7 thereof, admitted through and through the stance of the tribunal when it asserted. “It is settled law that a party relying on documents in proving his case must relate each of such documents to the specific area of his case in respect of which the document is being tendered in support of his case. In other words, there must be a link between the document and specific areas of the petition. See ANPP V. USMAN (2008) 12 NWLR (Pt. 110)1; JALIN V. NVAME (1992)3 NWLR (Pt. 231) 538; TARAB V. LAWAN (1992) 3 NWLR (Pt. 231) 569”. Perhaps, due to the distance between issue one and issue six in its brief of argument, it has forgotten about that undiluted admission of the position of the law. This serves as a reminder. The view, succinctly, expressed by the tribunal, to my mind, represents the current position of the law. A party, the petitioner, must create a nexus between his documentary evidence and the very area or aspect the documentary is concerned with otherwise it will inchoate or hanging in the proceedings. What the appellant did smacks of “dumping documents”, a mantra that is a commonplace nowadays in election petition proceedings, for which it will be wholly injudicious and unwholesome for any court to unveil their connection with to the specific aspects of its case had the tribunal examined those documents out of Court, id est outside the precincts or four walls of the court room, it would have unwittingly usurped the function of witnesses who have the monopoly to connect documents to various aspects of appellant’s case either during examination – in – chief or cross-examination in addition to handing down despicable cloistered justice, see Onibudo V. Akibu (1982) 7 SC 29 at 30; Alao v. Akano (supra); Iwole V. Iwuagwu (2005) 16 NWLR (pt. 952) 543. Such an uncanny and illegal judicial exercise would have led to discovery of fresh facts, not evaluation, which Ayoola, JSC, frowned upon in the case of W.A.B. Ltd. v. Savannah Ventures Ltd. (supra) (2002)10 NWLR (pt. 775) 401. Let me drum the point home that in that case only three exhibits, valuation reports, were tendered for which it was proper for the court to examine alongside the parol evidence given. That simple situation sharply contrasts with the appellant’s case wherein tendered myriads or flood of documents in bundles, hoping on the tribunal to disentangle them, what the appellant is supplicating, from this court, is for it to do that which the tribunal rightly failed to do. I decline that tempting invitation for fear of insulting the law.
Besides, even if the tribunal had plunged itself into untying those sea of documents, it would still have been unable to turnaround the misfortune in the appellant’s case to good fortune. The reason is obvious. The appellant was highly stingy and miserly in its petition in that it never made specific allegations of corrupt practices and non-compliance with the provisions of the Electoral Act, 2010, as amended, in specific or particular polling units or wards where they occurred. It lumped the allegations. For instance in paragraph 18 of the petition it pleaded that “the results of the election in Jigawa State were jettisoned and altered to suit the 1st Respondent.” In paragraph 19 of the petition, it averred that “many of the results” from the enumerated 27 Local Government Areas of Jigawa State “as confirmed in various FORMS EC8A, EC8B, and ECSC are void for non-compliance with the spirit and intendments of sections 74 & 53 of the Electoral Act, 2010.” These pleadings are generic and woolly, devoid of any precision expected of any pleadings, as no particular areas, polling units or wards, where the electoral infringement occurred are specified, see Amosun V. INEC (supra). In sum, issue six is resolved against the appellant.
ISSUE EIGHT
In that issue, the appellant chastised the tribunal for failing to consider the pleadings of the parties even when the respondents admitted paragraphs 18 and 19 of its petition.
In attending to that, an issue, convenient starting point is to cull from the pages 5 of the printed record the averments in paragraphs 18 and 19 of the petition, ipsissma verba, thus:
18) Your petitioner avers further that contrary to the 3rd Respondent’s guideline and Electoral Act 2010 the results of the election of Jigawa State were jettisoned and altered to suit the 1st Respondent.
19) Your petitioner states that in the election Many results from Auyo, Babura, Birniwa, Birnin Kudu, Buji, Dutse, Garki, Gagarawo, Gumel, Guri, Gwiwa, Jahun, Kiri – Kasamma, Kafin Hausa, Kazaure, Kiyawa, Mallam Madori, Maigatari, Miga, Hadejia, Ringim, Roni, Sule-Tankarkar, Taure, Yan – Kwashi and Gwaram Local Governments as contained in various FORMS EC8A, EC8B, and EC8C are void for non – compliance with the spirit and intendments of sections 74 & 53 of the Electoral Act 2010. The petitioner hereby puts the 3rd Respondent on notice to produce the forms EC8A, EC8B and EC8C of all the Local Governments of Jigawa State as same will be relied upon at the trial of this petition.
On the contrary, the first and second respondents in paragraphs 15 and 16 of their joint reply, contained on page 149 of the record, averred:
15. The 1st and 2nd Respondents deny Paragraphs 16, 17, 18 and 19 of petition and put the petitioner to strict Proof.
16. The 1st and 2nd Respondents shall by way of objection contend that averments in paragraphs 16, 17, 18, and 19 of the petition are vague and general and incapable of raising the issues of corrupt practices or non compliance with the Electoral Act 2010 and will urge that the said paragraphs 16, 17, 18 and 19 are struck out of the petition.
In paragraph 6 and 7th the third – fifth respondents in their joint reply, found on page 44 of the record, pleaded:
“16. In responses to paragraph 10, 11, 16, 17, 18, 19 and 21 (“Grounds of the petition 3rd – 5th Respondents State as follows:
a. There were no wrong computation of valid votes cast of the election by the 3rd-5th respondents and there was no altered, inflated or artificial potting units as alleged by the Petitioner.
b. There was no thumb – printing of ballot papers except by duly accredited voters in exercise of their Constitutional and Civil duty.
d. The 3rd Respondent validly returned the 1st Respondent as the winner of the said election after scoring the majority of lawful votes cast after the election. 3rd Respondent relied on all the election forms used at the said election held on 26th April, 2011.
17. Generally, in response to the petition, the 3rd – 5th respondents are denying that there was, corrupt practices, irregularities, falsification of results, false information and presentation forged documents. The petitioner is put to the strictest proof of the allegation. Now, when the appellant’s averments in paragraphs 18 and 19 of the petition are placed side by side with those of the respondents as respectively reproduced ante, can it be said that the latter admitted the pleadings of the former, the, appellant? I return a negative answer. In my view, the respondents squarely joined issues with the appellant on those aforementioned paragraphs. As already observed, which observation is still extant, the appellant, in its infinite wisdom, was very tersely and concealed facts in its petition. The appellant’s averments, especially in paragraphs 18 and 19 of the petition, are, to say the least, generic, imprecise, inexact and woolly. Such nebulous averments required only general traverse to counter them and that is what the respondents. In the case of Abubakar V. Yar’adua (supra), at page 147, Tobi, JSC affirmed that:
One basic principle of pleadings is that the facts pleaded must be exact, precise and should not give rise or room for speculation or conjecture. The facts pleaded must be concise and not rigmarole.
The appellant’s paragraphs 18 and 19 seriously fell short of the above standard of pleadings. Hence, the respondents decided to meet them in the same manner of blanket averments. Again, issue eight is resolved against the appellant.
On the whole, all the eight issues for determination, formulated in this appeal, have been resolved against the appellant, id est, in favour of the respondents. For this reason, the appellant’s appeal stands on a quicksand. There is no jot of merit in the appeal. Accordingly, I hereby dismiss the appeal and refuse all the reliefs claimed therein. For the avoidance of doubt, I affirm the judgment of the tribunal, delivered on 24/10/2011, dismissing the appellant’s petition. I order that parties bear; their respective costs of prosecuting and defending the doomed appeal.
JUDGMENT IN THE CROSS-APPEAL
The cross – appellants, who were the first and second respondents in the petition and in the main appeal, were, also, aggrieved by a portion of decision of the Governorship Election Petition Tribunal of Jigawa State, delivered on 24/10/2011, and they filed the cross – appeal.
At the conclusion of trial proceedings in the tribunal, it directed parties to file their final written addresses. Sequel to that order, the cross-appellants filed their final written address on 12/09/2011. The first respondent/cross-respondent, the petitioner in the tribunal, filed its final written address, on 19/09/2011, which encompassed 50 pages with a schedule containing 75 pages totaling 125 pages. The cross appellants filed a reply to the cross-appellant’s final written address, on 26/09/2011, and raised objection to its competence on the ground that it breached the provisions of paragraph 5(a) and (c) of the Election -Tribunal and Court Practices Direction, 2011 (the Practice Directions) by exceeding 40 pages.
On 27/09/2011, the parties adopted their various final written addresses and the cross – appellants drew the tribunal’s attention to their objection. In its judgment, delivered on 24/10/2011, the tribunal overruled that objection, declared the cross-respondent’s final written address as competence and regularized it a process filed on its directive. The cross-appellants were dissatisfied with that ruling and they filed a notice of cross-appeal containing three (3) grounds on 13/11/2011. The parties filed and exchanged briefs of argument as allowed by law.
When the cross appeal came up for hearing on 07/12/2011, the parties adopted their respective briefs of argument. Learned Senior Counsel for the cross-appellants, O.E.B. Offiong, Esq., SAN, adopted the cross-appellants brief of argument, filed on 24/11/2011, as representing his arguments in favour of the cross-appeal. Similarly, learned senior counsel for the cross-respondent, Adamu Abubakar, Esq., adopted its brief of argument, filed on 02/12/2011, as forming his submissions against the cross – appeal.
The cross-appellants, in their brief of argument, framed are issue for determination to wit:
Whether the decision of the Governorship Election Tribunal established for Jigawa State, Holden at Dutse, Jigawa State contained in its judgment dated the 24th day of October, 2011 to validate the Petitioner’s Final Written Address dated 19th September, 2011 which was in excess of the 40 page limit prescribed by paragraph 5 (a) of the Election Tribunal and Court Practice Directions, 2011 by treating it as an irregularity and deeming it as “otherwise directed to be filed by the Tribunal” was right in the circumstances?
On the other hand, the cross-respondent, in its brief of argument, formulated another sole issue for determination Viz.
1) Whether the trial tribunal was right when it exercised its decision pursuant to paragraph 5 (a) of its Practice Direction 2011 and allowed the Petitioner’s final written address.
I have juxtaposed the cross-appellants’ issue for determination with that of the cross-respondent. In my understanding, they exhibit symmetrical features in substance, one a clone of the other. However, the cross-respondent’s issue can be dissolved in that of the cross-appellants’ which is more all-encompassing. I will, therefore, base my consideration of the cross-appeal on the cross-appellants’ lone issue for determination.
On that mono issue, learned senior counsel for the cross-appellants submitted that the cross-respondent’s final written address (hereunder abridged to “address”), filed on 20/09/2011, was incompetent and ought to have been struck by the tribunal as it exceeded 40 pages in violation of the mandatory provisions of paragraph 5(a) of the Practice Directions. He noted that the tribunal never directed a departure from the provision of that paragraph nor did the cross-respondent apply for departure from it and the tribunal granted to it a relief it did not ask for. He relied on the cases of Bola Ige v. Dr. Omololu Olunloyo (1984)1 SC 258; Veepee Ind. Ltd. V. Cocoa Ind. Ltd. (2008)13 NWLR (Pt.1105) 468; Dumez (Nig.) Ltd. V. Nwakhoba (2008)18 NWLR (Pt.1119) 361. He added that the cross-respondent’s address was 50 pages with a schedule containing 75 pages making a total of 125 pages and that the sanction in paragraph 5(C) of the Practice Directions should follow it.
He took the stand that by virtue of paragraph 5(a) and (c) of the Practice Directions, it was a condition precedent for the competence of every written address not to exceed 40 pages. He relied on the case of Inakoju v. Adeleke (2007) All FWLR (Pt.353)3 for the meaning and essence of a condition precedent. He posited that those provisions contained the word “shall” meaning that they must be complied with and they were clear and unambiguous and must be given their literal interpretation. He cited the case of Buhari v. INEC (2009) All FWLR (Pt.459) 419; Calabar Central Co-operative Thrift and Credit Society Ltd v. Ekpo (2008) All FWLR (Pt.418)198 in support of his postulation.
He added that a clear case of non-compliance with those paragraphs was established against the cross-respondent and their address should have been struck out. He referred to the case of Amaechi v. INEC (2008)5 NWLR (Pt.1080) 227. He insisted that by that address violating the page limit, the tribunal was robbed of the jurisdiction to consider it. He added that the secretary of the tribunal having accepted the address, the tribunal had a duty to strike it out. He referred to the case of Sylvester Chukwuma V. Anthony Ezechi Nwoye (2011) All FWLR (Pt.553) 1972.
He further submitted that the tribunal was wrong to have suo motu deemed the address as having been “otherwise directed to be filed by the Tribunal” as it occassioned a miscarriage of justice to the cross – appellants whose right to fair hearing, audi alteram purtem, was breached. He plead reliance on the cases of Victino Fixed odds Ltd. V. Ojo (2010) All FWLR (Pt. 524)25; INEC V. A.D.C (2009) All FWLR (Pt. 490)668; Eshenake V. Gbinije (2006) 1 NWLR (Pt. 961) 228; Hassan V. Tumu (1999) 10 NWLR (Pt. 624) 700. He, also, referred to the above cases to demonstrate that the tribunal descended into the arena. He persisted that the tribunal had no jurisdiction to make the deeming order which the cross – appellants did not ask for. He cited the cases of Bola Ige V. Dr. Omolohi Olunloyo (supra); Veepee Ind. Ltd. V. Coloa Ind. Ltd. (supra); Dumez (Nig.) ltd V. Nwakhoba (supra).
He reasoned that the question of the cross- appellants not showing the nature of injustice or prejudice they would suffer did not arise in the face of the non – compliance with the mandatory rules of court which were meant to be obeyed. He observed that by the deeming order, the cross – appellants were not accorded a fair hearing so as to put forward the nature of injustice or prejudice they stood to suffer. He concluded that there was an inherent unfairness in allowing the cross-respondent to file and rely on a 125-page address without according the same opportunity to the cross-appellants. He, finally, based on those submissions, urged the court to allow the cross appeal.
For the gross-respondent, its learned senior counsel argued that the tribunal exercised its discretion and was not bound to do it in a particular way or in accordance to existing judicial decisions as such exercise would depend on the peculiar facts and circumstances of each case. He cited the case of ICAN v. A.-G., Fed. (2004) 3 NWLR (Pt.859) 186. He posited that the exercise of the discretion of the tribunal could only be interfered with if it acted: under mistake of law, mistake of facts, not judicially or judiciously, or it took irrelevant matters into consideration. He insisted that none of those situations existed to warrant interference with the tribunal’s exercise of its discretion. He relied on the cases of Solanke v. Ajibola (1969) 1 NWLR 253; Nwamkpu v. Ewulu (1995)7 NWLR (Pt.407) 269.
He added that the tribunal exercised its discretion in accordance with the provision of paragraph 5(a) of the Practice Directions, by allowing the cross-respondent’s address, and so guided by law without reason for interference. He referred to the case of Oyegun v. Nzeribe (2010) All FWLR (Pt.516) 425; Niger Construction Ltd. V Okugbeni (1987)4 NWLR (Pt.67)787.
He contended that it was wrong of the cross-appellants to blame the tribunal for the deeming order since they were the parties that raised the issue of incompetence against the cross-respondent’s address. He conceded that when a court raised an issue suo motu, it must hear parties on it, but quickly classified the case in hand as an exception since the cross appellants raised the issue of incompetence of the cross-respondent’s address. He added that the deeming order – the address as having been otherwise directed to be filed by the tribunal, was an issue of law which the tribunal was right to raise suo motu. He placed reliance on the case of Effiong v. C.R.O.S.I.E.C. (2010) All FWLR (Pt.552) 1610. He admitted that the Court of Appeal had the statutory power to look into the reasons for the tribunal’s exercise of its discretion. In support, he cited the case of Ojiako v A.-G., Anambra State, (2000)1 NWLR (Pt.641) 375. He persisted that striking out the cross-respondent’s address would amount to visiting the sin of the registry on it. He concluded that the tribunal exercised its discretion bona fide and not illegally. He relied on the cases of CATCO Corporation Organised v. A.R.C. (2010) All FWLR (Pt.517) 677; Hamza v. Kure (2010) All FWLR (Pt.539) 1070. On the strength of those arguments, he urged the court to dismiss the cross-appeal.
A dispassionate consideration of this singular issue in this cross-appeal turns on the interpretation of Paragraph 5(a) and (c) of the Practice Directions. The paragraph provides:
5. (a) Except where the Tribunal directs otherwise, every written submission or reply to be filed in the Tribunal shall not exceed forty pages.
(c) Every such document which does not comply with the page limit and page size requirements of this paragraph shall not be accepted by the Secretary for filing.
The cardinal thrust of the cross-appellants grouse, in the cross-appeal, is that the cross-respondent infringed the provisions of subparagraph (a) of paragraph 5 of the Practice Directions in that its address, in the tribunal, was 50 pages with a schedule of 75 pales making it 125 pages. It is also part of their grievance that the tribunal regularised the address instead of striking it out.
Indubitably, the cross-respondent transgressed the prescription of paragraph 5(a) of the Practice Directions by filing an address beyond 40 pages. Nonetheless, that provision is not absolute in application owing to the use of the word “except” to introduce it. According to the New Webster’s Dictionary of the English Language, International Edition, on page 329, the word “except”, a verb, means: “To exclude from a list, rule, statement, classification etc… Apart from, excluding”. By the use of that word, the provision has made an in-built qualification to the strict observance of the number of pages an address should contain. It amply signifies that a court has the discretion to derogate from the page limitation or ceiling placed on any address. Therefore, the tribunal’s directive is not in the least offensive to the provision which has donated some latitude to it vis-a-vis page prescription of any address.
Furthermore, what the tribunal did, in waiving the non-compliance for the cross-respondents, was in the interest of doing substantial justice. It admits of no argument that Practice Directions are made to ensure compliance with rules of courts in order to fastrack the dispensation of justice, see Haruna v. Modibo (2004) 16 NWLR (Pt.900) 487, N.A.A. v. Okoro (1995) 6 NWLR (Pt.403) 510; Buhari v. INEC (2008) 19 NWLR (Pt.1120) 240.
Where a strict adherence to the rules of Courts or practice directions will constitute an albatross along the terrain of dispensing substantial justice, the courts are mandated, by judicial authorities, to tilt towards the path of justice. The provisions of rules of courts, afortiori practice directions, cannot be employed by the courts to choke, annihilate, asphyxiate and strangle justice which is man’s greatest interest in the passing earth, see U.T.C. (Nig) Ltd v. Pamotei (1989) 2NWLR (Pt.103) 244; Duke v. Akpabuyo L.G. (2005) 19 NWLR (Pt.959) 130; Dingyadi v. INEC (No.1) (2010) 18 NWLR (Pt. 1224) 1; UNILAG v. Aigoro (1934) NSCC Vol. 15 745. Thus, in the case of Abubakar v. Yar’Adua (2008) 4 NWLR (Pt.1078) 465 at 510-511, Tobi JSC, graphically captured the extenuating effect of non-compliance with the practice directions in these illuminating words:
Assuming that learned Senior Advocate for the appellant is correct in the position he has taken on the conduct of the 4th to 808th respondents, should this court deal with the respondents in the way he has suggested? I do not think that the heavens will fall on the universe because the paragraph was not complied, with; I take the non-compliance as an irregularity which is curable. And here, I entirety agree with counsel for the 4th to 808th respondents. It is not every non-compliance with rules of court that will vitiate the proceedings or do harm to the party in default. As a matter of our adjectival law, and by the state of the non-compliance rules, the courts will regard certain acts or conducts of non-compliance as mere irregularity which could be waived in the interest of justice. Again, as a matter of our adjectival law, non-compliance rules in their aggregate content point more to this trend than the reverse position of a punitive nature against the non-complying party. The State of the law is more in favour of forgiving non-compliance with rules of court, particularly, when such noncompliance, if waived, will be in the interest of justice.
The basic principle of law is that it is the object of the court to decide the rights of the parties and not to punish them for mistakes they make in the litigation process, particularly when the mistakes are really mistakes. It is a known fact that blunders must take place in the litigation process and because blunders are inevitable, it is not fair, in appropriate cases, to make a party in the blunder to incur the wrath of the law at the expense of hearing the merits of the case. Rules of court, which include here. Practice Directions, are not intended to be ridiculously applied to a slavish point particularly if such an application will do injustice in the case…
Rules of Court are meant to be obeyed. Of course, that is why they are made. There should be no argument about that. But there is an important qualification or cavest and it is that their obedience cannot or should not be slavish to the point that justice in the case is destroyed or thrown overboard. The greatest barometer, as far as the public is concerned, is whether at the end of the litigation process, justice has been done to the parties. Therefore, if in the course of doing justice, some harm is done to some procedural rule which hurts the rule, such as paragraph 7 of the Practice Directions, the court should be happy that it took that line of action in pursuance of justice. This court cannot myopically or blindly follow the Practice Directions and full into a mirage und get physically und mentally absorbed or lost. Let that day not come.
I take sanctuary under the above ex cathedra pronouncement, inter alia, to hold that the cross-respondent’s blunder was an irregularity which did not disrupt the prop of the petition in the tribunal. This is more so when the tribunal did not utilise the address, with its accompanying schedule, by relying on the contents to the detriment of the cross appellants.
As a result of that non-user of the address, the cross-appellants, in my view, were miles away from suffering any jot of miscarriage of justice. The tribunal was right in overruling the cross-appellant’s objection to the address. I resolve the single issue against the cross-appellants.
Overall, since the solitary issue in the cross-appeal is resolved against the cross-appellant, I hold that there is no spot of merit in it. Consequently, I dismiss the cross-appeal. I order that parties bear their respective costs of prosecuting and defending the ill-fated cross-appeal.

AMINA A. AUGIE: I agree.

ABDU ABOKI: I agree.

AHMAD O. BELGORE: I agree.

THERESA N. ORJI-ABADUA: I agree.

Appearances

K.T. Turaki, SAN: (with him, Adamu Abubabar Esq., Lamidu Bala, Folashade Aofola (Mrs.) Abdulaziz Abdulmalik, Esq., K.T Sulyman Esq., D. Ajogba Esq., F.U Adejoh Esq., I.O Usman Esq., Rev. E.T, Gora Esq., A.B. Kirfi Esq., A. Salihu Esq., and Laminu Bala Esq.,) for Appellants/Cross-Respondents For Appellant

AND

O.E.B. Offiong, SAN (with him, F.J, Osimerha Esq., K.B. Olawoyin Esq., G.O Uzu Esq.) for the 1st and 2nd Respondents/Cross-Appellants

Ibrahim Isiyaku SAN (with him, Muhammad Bello Esq., and Shuaibu Sallau Esq.) for the 3rd-5th Respondents For Respondent