ALHAJA AYO OMIDIRAN V. ETTEH PATRICIA OLUBUNMI & 343 ORS (2010)

ALHAJA AYO OMIDIRAN V. ETTEH PATRICIA OLUBUNMI & 343 ORS

(2010)LCN/3639(CA)

In The Court of Appeal of Nigeria

On Monday, the 22nd day of March, 2010

CA/I/EPT/NA/95/08

RATIO

COURT: PRINCIPLE OF LAW ON RULES OF COURT

The basic principle of law is that rules of court are meant to be obeyed. However, in the implementation of rules of procedure or practice directions, the paramount consideration of the court is to do substantial justice between the parties. A court should not in the process allow strict adherence to technicalities becloud its sacred duty to do substantial justice. At the end of the day an impartial bystander should be satisfied that justice has been done to all the parties in the matter. See: Abubakar vs Yar’Adua (2008) 1 SC (Pt. II) 77 at 122 lines 1 – 7; Oni vs Fayemi {2008) 8 NWLR (1089) 400 at 443 C” E & 451 – 452 G – B. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JCA

ORDER: MEANING AND NATURE OF A SUBPOENA

A subpoena is a formal document issued by the court commanding a person required by a party to a suit to attend before the court at a given date, to give evidence on behalf of the party or to bring with him and produce any specified documents required by the party as evidence or for both purposes.

PRACTICE: ESSENCE OF PRACTICE DIRECTIONS

ELECTION PETITION: HOW ARE ELECTION PETITIONS CONDUCTED

In election petition proceedings it is in the interest of justice that parties are given full opportunity to ventilate their case without undue regard to technicalities. See: Abubakar vs Yar’Adua (2008) 4 NWLR (1078) 538 at 543 D ‘E2’80” F; Aregbesola vs. Oyinlola (2009) 14 NWLR (1162) 429 at 478-479 G-B. In the case of LASUN vs. AWOYEMI (2009) 16 NWLR (1168) 513 at 550 E-F, this court held per Ogunbiyi JCA thus:

“With the Tribunal having issued subpoena duces tecum et ad testificandum on a competent and compellable witness but prevented him from giving evidence, such tribunal cannot be said to have obeyed the hallowed principle of natural justice, equity and good conscience.. The case of the appellant.. … has not received fair treatment in the circumstance.” PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JCA

FAIR HEARING: EFFECT OF BREACH OF THE RIGHT TO FAIR HEARING

The position of the law is that the breach of the right to fair hearing vitiates the entire proceedings, rendering same null and void and of no effect, no matter how well conducted. See: Ceekay Traders Ltd. Vs General Motors Co. Ltd. (1992) 2 NWLR (222) 132; Adigun vs A.G. Oyo State (1997) 1 NWLR (53) 678; Salu vs Egeibon (1994) 6 NWLR (248) 23 at 44. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JCA

JUSTICES

KUDIRAT M.O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

Between

ALHAJA AYO OMIDIRAN Appellant(s)

AND

ETTEH PATRICIA OLUBUNMI & 343 ORS Respondent(s)

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JCA(Delivering the Leading Judgment): This is an appeal against the rulings and judgment of the Governorship and Legislative Houses Election Petition Tribunal holden at Osogbo (hereinafter referred to as the Tribunal) delivered on 17th January 2008, 3rd March 2008, 31st March 2008 and 31st May 2008 respectively.
On 21st April 2007 elections were held into the Federal House of Representatives for the Ayedaade/Irewole/Isokan Federal Constituency of Osun State. The appellant contested the election on the platform of the Action Congress (AC) while the 1st respondent contested on the platform of the Peoples Democratic Party (PDP). At the conclusion of the election, the 3rd and 4th respondents returned the 1st respondent as the winner. The appellant was dissatisfied with the return of the 1st respondent and filed a petition before the Tribunal, which was subsequently amended by order of court, challenging the said return on the ground, inter alia, that the election was characterised by numerous electoral malpractices, irregularities and non-compliance with the provisions of the Electoral Act 2006. She sought a declaration that the election was invalid and therefore vitiated by reason of non-compliance with the Electoral Act; an order nullifying the elections; and an order directing the 3rd respondent to conduct fresh elections for the said Federal Constituency.
The parties duly filed and exchanged pleadings, witness statements on oath and list of documents to be relied upon at the hearing in compliance with the Practice Directions 2007. After the conclusion of pre-hearing sessions the matter proceeded to trial. The appellant called 16 witnesses and tendered various documents through them. The 1st and 2nd respondents called 5 witnesses. The 3rd – 342nd respondents (INEC and its officials) and the 343rd – 344th respondents (the law enforcement agents) did not call any witnesses. At the conclusion of the trial the parties filed and exchanged written addresses. In a considered judgment delivered on 31st May 2008 the Tribunal dismissed the petition.
The appellant being dissatisfied with the decision filed a notice of appeal dated 19th June 2008 containing 9 grounds of appeal. Pursuant to an order of this court granted on 1st July 2009 she filed an amended notice of appeal dated 28/8/08 and filed on 29/8/08. The appellant, 1st and 2nd respondents, and 343rd and 344th respondents filed and exchanged their respective briefs of argument. The 3rd – 342nd respondents did not file any brief. Mr. Tope Adebayo, learned counsel for the appellant adopted and relied on the appellant’s brief dated 20/10/09 and deemed filed on 8/12/09 and the reply brief to the 1st and 2nd and 343rd and 344th respondents’ briefs dated 20/12/09 and filed on 22/12/09. He cited two additional authorities in support of issue 5 at page 65 of his brief: Ukpo vs Imoke (2009) 1 NWLR (1121) 90 at 124 and Amgbare vs Sylva (2009) 1 NWLR {1121) 1 at 62 – 63. He urged the court to dismiss the 1st and 2nd respondents’ preliminary objection and allow the appeal. Chief Abayomi Alliyu adopted and relied on the 1st and 2nd respondents’ brief dated and filed on 8/12/09. He drew the court’s attention to the preliminary objection raised and argued at pages 10 – 16 of the brief. He urged the court to uphold the preliminary objection. Alternatively he adopted and relied on the submissions in respect of the issues for determination and urged the court to dismiss the appeal. Mr. M.O. Adedokun, Senior State Counsel, Ministry of Justice, Osun State, adopted and relied on the 343rd and 344th respondents’ brief dated and filed on 8/12/09. He urged the court to dismiss the appeal and uphold the judgment of the Tribunal.
From the 22 grounds of appeal contained in the amended notice of appeal, the appellant formulated 5 issues for determination thus:
1. Whether the refusal to allow the appellant call additional witness to give evidence of the inspection conducted pursuant to the order of the Tribunal is not tantamount to a breach of the fundamental right of the appellant to fair hearing. (Grounds 1 & 2).
2. Whether denying the representative of the Resident Electoral Commissioner, Osun State: on subpoena: the opportunity to give evidence did not amount to a breach of the appellant’s right to fair hearing. (Grounds 3, 4 & 5).
3. Whether it is necessary to obtain the consent of the respondents before the Tribunal could admit the original of ballot papers, ballot boxes and studs of ballot papers produced by INEC in evidence despite the fact that they were admitted by the respondents in their respective pleadings. (Grounds 6 & 7).
4. Whether the Tribunal was not wrong, improperly exercised judicial discretion and/or misapplied the law in its evaluation and ascription of probative values to oral, documentary and real evidence before it. (Grounds 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21 and 22).
5. In view of the established substantial noncompliance with the provisions of the Electoral Act established on record, whether the Tribunal should not have held that the election was invalid by reason of noncompliance with the provisions of the Electoral Act 2006 and other mandatory statutory requirements which substantially affected the validity of the said election. (Ground 13).
The 1st and 2nd respondents adopted the five issues formulated by the appellant. The 343rd and 344th respondents formulated a single issue for determination thus:
“Whether the petitioner has proved the allegation of acts of massive rigging, electoral malpractices, substantial irregularities, ballot stuffing, double voting and act of thuggery that he made against the 343rd and 344th respondents. (Ground 12).”
Before considering the merit of the appeal, it is necessary to consider the preliminary objection raised by the 1st and 2nd respondents at pages 10 – 16 of their brief. It is their contention that grounds 1, 2, 4 and 9 of the grounds of appeal and their respective particulars are incompetent. Specific reference was made to ground 1 and particular (vi) thereof, ground 2 and particulars (iii) and (vi), ground 4 and particulars (ii), (iii) and (vi) and ground 9 with all its particulars. It is further contended that issues 1, 2, 3 and 4 formulated from the incompetent grounds of appeal should be struck out. In respect of grounds 1, 2, 4 and 9, learned counsel submitted that they are not in compliance with the provisions of Order 6 Rule 2 (3) of the Court of Appeal Rules 2007 for being argumentative, prolix, vague and general in terms. He cited the cases of: Kalu vs Uzor (2006) 8 NWLR (981) 66 at 85 A – F: Khalil vs. Yar’ Adua (2003) 16 NWLR (847) 446 at 477 – 479. On striking out issues formulated from incompetent grounds of appeal, he relied on: Korede vs Adedokun: suit no. CA/I/14/92 delivered on 30/6/94 (unreported); Ngige vs Obi (2006) 14 NWLR (999) 1 at 165 D – H. It is also contended that grounds 15 and 17 allege error in law and misdirection in the same grounds. On the incompetence of these grounds he relied on: Nwadike vs Ibekwe (1987) 4 NWLR (67) 718 at 744 – 745: Ufayo vs Dabiri (2008) 6 NWLR (1083) 225 at 237: Agbaka vs Amadi (1988) 11 NWLR (572) 16 at 24.
In reply, learned counsel for the appellant submitted with regard to grounds 1, 2, 4 and 9 and their particulars that all that the particulars have done is to give the basis of the appellant’s complaint against the judgment of the Tribunal. With regard to particular (vi) of ground 1 he submitted that the appellant mentioned the facts contained in the inspection report, which the appellant’s witness was not allowed to tender or give evidence upon by the Tribunal.
On the submission that grounds 15 and 17 allege both error in law and misdirection on facts, he submitted that this fact alone is not sufficient to render the grounds incompetent so long as from the manner in which the ground is couched the adverse party is not in doubt as to what the appellant’s complaint is. He relied on: Aderounmu vs Olowu (2000) 4 NWLR (652) 253 at 265 – 266 H – B & 272 B – C. He noted that the Supreme Court in Aderounmu’s case cautioned against interpreting the decision in Nwadike Vs Ibekwe (supra) as – making a blanket pronouncement that once error in law and misdirection on facts are contained in the same ground, the ground is automatically incompetent. He submitted that the apex court took a similar position in the case of: Humbe vs Hueze (2001) 4 NWLR (703) 372 at 385 – 387 &. 389 – 390 H – B: also: Akanbi vs Salawu (2003) 13 NWLR (838) 637 at 648 G ‘E2’80” H and NITT vs Dange (2008) 28 WRN 124 at 140 lines 45 – 50.
I have carefully considered the submissions of learned counsel and the authorities cited by them as regards the competence of the grounds of appeal. I have considered grounds 1, 2, 4 and 9 and the particulars thereof complained of by learned counsel for the 1st and 2nd respondents. I agree with him that they are unnecessarily prolix and argumentative. However the complaints therein are clear. The objection raises an issue of technicality, which does not affect the substance of the said grounds of appeal. The courts have moved away from reliance on technicalities in favour of substantial justice. I am of the view and do hold that notwithstanding the inelegant manner in which the grounds of appeal are drafted, they are valid grounds of appeal. I have also considered grounds 15 and 17, which complain of both error and misdirection. The guiding principle in respect of the objection raised was well stated by the Supreme Court in the case of: Aderounmu vs Olowu (2000) 2 SC (part II) 1 at 8 lines 21 – 31 & page 9 lines 4 – 10 per Ayoola, JSC thus:
”In my opinion, what is important in a ground of appeal, and the test the court should apply, is whether or not the impugned ground shows clearly what is complained of as error in law and what is complained of as misdirection, or, as the case may be, error of fact, The view, with which I am inclined to agree, is expressed by the Court of Appeal case of Neogwuija & Ors vs Ikuru & Ors. (1998) 10 NWLR (569) 267, 310 that the mere fact that a ground of appeal is framed as an error and a misdirection does not make it incompetent.
What makes a ground incompetent is not whether it is framed as an error and a misdirection but whether by so stating it, the other side is left in doubt and without adequate information as to what the complaint of the appellant actually is.
Per Ogundare, JSC at page 18 lines 27 – 48:
“The dictum of Nnaemeka-Agu, JSC in Nwadike vs. Ibekwe (supra) did not goes far as some of their Lordships of the Court of Appeal made it to look. The learned Justice of the Supreme Court advised against lumping together in a ground of appeal complaints that ought better to have been split into different grounds of appeal. I commend this wise counsel to all legal practitioners engaged in drafting notices of appeal. I do not think, however, that non-adherence to this wise counsel will necessarily render incompetent any ground of appeal that otherwise complies with the requirement of the rules.
See also: Aigbohai vs. Aifuwa (2006) 2 SC (Part 1) 82 at 89 lines 6-18 per Onnoghen, JSC:
the position in my humble view is that once it is possible to make sense out of a ground of appeal that complains both of error in law and misdirection in fact, the ground is valid, the defect in its form notwithstanding. The rationale behind this lies in the shift in emphasis from technical justice to substantial justice from form to substance. In other words’97 though a ground of appeal that complains of an error in law and misdirection in fact may be inelegant in drafting and thereby defective in form, that defect alone is not sufficient to have it struck out provided the complaints therein are clear. See pages 265-266 of Aderounmu v Olowu supra per Ayoola, JSC.
With regard to grounds 15 and 17, notwithstanding their inelegant drafting, the complaint of the appellant is clear and the respondents are not left in any doubt or without adequate information about what the appellant’s complaint is. For these reasons I hold that grounds 1, 2, 4, 9, 15 and 17 of the grounds of appeal are competent. The grounds formulated therefrom are also competent. The preliminary objection therefore fails and is accordingly dismissed.
I shall now proceed to consider the merits of the appeal. Having considered the issues formulated by the parties, I am of the view that the issues formulated by the appellant are adequate to dispose of the appeal. I shall consider issues 1 and 2, which raise the issue of fair hearing together.
Issues 1 & 2.
In support of the first issue, Mr. Adebayo, learned counsel for the appellant argued that on 11/7/07 the Tribunal granted the appellant’s application for an order directing the 3rd and 4th respondents (i.e. INEC and the Resident Electoral Commissioner, Ogun State) to make available to the appellant’s solicitor and/or its appointed agents for inspection all documents, ballot papers and other electoral materials in their custody used for the conduct of the election for the purpose of enabling the appellant to maintain her petition against the respondents. He stated that the inspection was duly carried out and a report compiled. He stated further that having compiled a report, the appellant, by an application dated 26/11/07 sought an order granting leave to call one Tiamiyu Adegboyega as an additional witness, file his witness statement and file the report, which he prepared. He stated that the application was refused on the ground that the appellant failed to show exceptional circumstances to warrant the grant of the application.
Relying on paragraph 6 (1) (2) and (3) of the Practice Direction and the combined effect of paragraph 4 (5) and (6) thereof, he submitted that once an applicant is able to show exceptional circumstances, an application to file an inspection report ought to be granted. Learned counsel submitted that by Section 141 of the Electoral Act 2006, an election petition must be filed within 30 days from the date of declaration of results. He also submitted that by paragraph 1 (1) of the Election Tribunal and Court Practice Direction 2007, a petition must be accompanied by the witness statements, the list of witnesses and the list of documents to be relied upon at the trial. He noted that in the instant case, the election result was declared on 21/4/07 and therefore the petition ought to have been filed on or before 21/5/07. He contended however, that having filed- an application pursuant to Section 159 of the Electoral Act for the purpose of maintaining the petition, after the 30 days specified for filing witness statements had expired, and which application was duly granted, the Tribunal ought to have known that in order to achieve the objective of the order, it would have been necessary for the person who participated in the inspection and prepared the report to testify and tender the report. He argued that it was impossible to expect the witness statement to have been filed within the 30 days required by the Practice Direction when the order for inspection was made after the time had expired. He referred to the case of: Oni vs Fayemi (2008) 8 NWLR (1089) 400 at 433 & 418. He submitted that the Tribunal placed undue reliance on technicalities to defeat the course of justice and thereby prevented the appellant from maintaining her petition.
He submitted further that the Tribunal also erred in refusing to enlarge time as requested by the appellant pursuant to paragraph 43 of the First Schedule to the Electoral Act. On this issue he also relied on Oni vs Fayemi (supra) at page 439: Abubakar vs Yar’Adua: Appeal No. SC/288/2007 delivered on 25/1/2008 (reported in (2008) 1 SC (Pt. 11) 77). On the contention that there was a breach of the appellant’s fundamental right to fair hearing, learned counsel relied on: Ekivor vs Bomor (1997) 9 NWLR(519) 1 at 12; Mattaradona vs Ahu (1995) 8 NWLR (412) 225 at 239; Kotoye vs CBN (1989) 1 NWLR (98) 419: Adigun vs A.G. Oyo State (1987) 1 NWLR (53) 678: NBA vs Odiri (2007) 8 NWLR (1035) 203 at 219; Avong vs KRPC Ltd. (2002) 14 NWLR (788) 508 at 535.
On the second issue, learned counsel submitted that notwithstanding the fact that the Tribunal issued two subpoena duces tecum ad testificandum addressed to the 4th Respondent, after the time for filing witness statements had elapsed (on 30/10/07 and 21/2/08 respectively), it disallowed the representatives of the 4th respondent from giving evidence for the appellant on the ground that the appellant did not file their witness statements along with the petition. He referred to paragraph 50 of the First Schedule to the Electoral Act, which provides that recourse may be had to the practice and procedure of the Federal High Court. He submitted that in the absence of any provision for the issuance of subpoena duces tecum ad testificandum under the Electoral Act, the provisions of Order 41 Rule 27 of the Federal High Court Rules are applicable. He argued that the Practice Direction that requires the filing of witness statements along with the petition cannot defeat the clear provisions of the Federal High Court Rules by fettering the exercise of discretion by the court. He relied on: University of Lagos vs Aigoro (1984) NSCC 745; (1985) 1 NWLR (1) 143. He submitted that the Tribunal was wrong to have relied on the Practice Direction to void a process permitted by the rules of court. He argued that if the Tribunal had properly considered the object of a subpoena it would have appreciated the fact that a witness on subpoena is obliged by the terms thereof to present himself in court to give evidence and not to go to a solicitor’s office for the purpose of drafting and deposing to a witness statement. He submitted that the Tribunal ought to have considered the fact that the representatives of the 4th Respondent summoned via a subpoena duces tecum ad testificandum were not only agents of the adversary but also representatives of an independent body, which must be seen to be independent and could therefore not have deposed to witness statements at the instance of the appellant. He submitted that by denying the appellant the opportunity of examining the witnesses on the irregular conduct of the election, the Tribunal disallowed evidence vital to sustaining the appellant’s petition.
In reaction to the first issue, learned counsel for the 1st and 2nd respondents referred to paragraph 6 (1), (2) and (3) of the Practice Direction and submitted that the Tribunal has the discretion to determine whether or not an applicant seeking to move an application outside the pre-hearing session has shown exceptional or extreme circumstances to warrant the grant of the application. He argued that in the exercise of discretion no one case can be authority for another. He cited the case of: Yesufu vs Ilori (2008) 6 NWLR (1083) 333 at 340. Learned counsel submitted that at the time of preparing the petition, the appellant ought to have known that she would conduct an inspection of electoral materials and tender the report through a witness. That the name of the witness ought to have been stated in the list of witnesses and frontloaded and the fact that the inspection report would be tendered referred to. He was of the view that the failure to frontload the information had the effect of springing a surprise on the respondents. He contended that this would be in breach of the mandatory provisions of paragraph 1 of the Practice Direction. He referred to: Buhari vs INEC (2008) 4 NWLR (1078) 546. He argued that the fact that the Tribunal made an order authorising the inspection of electoral materials does not ipso facto mean that the Tribunal is bound to grant an application to call additional witnesses. He argued that the appellant could make use of the information gathered during the inspection through the witnesses already listed and whose statements before the Tribunal already contained allegations of various acts of electoral malpractice. He disagreed with the appellant’s contention that the Tribunal in granting the order for inspection ought to have known that it would be necessary to call a witness who participated in the inspection to tender the report. He submitted that the Practice Direction must be obeyed and that a litigant is not at liberty to pick and choose which aspect to comply with.
Learned counsel submitted that in the instant case granting the application to call additional witnesses would have had the effect of amending the petition through the back door by introducing fresh facts and issues; would have taken the respondents by surprise by overreaching them; would have radically changed the character of the petition and would have wasted the time of the Tribunal if the other parties were to reply to the new issues by amending their processes. On the special nature of election petition proceedings and the need for expeditious hearing he referred to: Ahmed Jiddah vs Kallah (1994 NWLR (599) 426 at 433; Aregbesola vs Oyinlola: Appeal No. CA/I/EPT/GOV/31/2008. He submitted that where the Electoral Act and/or Practice Direction has set down a procedure to obtain a hearing, a party acts at his peril if he fails to comply and cannot be heard to complain of lack of fair hearing. He referred to: MMS Ltd. Vs Oteju (2005) 14 NWLR (945) 517 at 543.
On the second issue, learned counsel submitted that the fact that the Tribunal approved the issuance of the subpoena was not a sine qua non for the representative of the 4th respondent to be sworn in to testify on the petition in the face of non-compliance with paragraph 1 of the Practice Direction. He argued that the appellant could not use the issuance of a subpoena to circumvent the provisions of paragraph 1 of the Practice Direction. He rejected the contention of learned counsel for the appellant that there was need to resort to the provisions of the Federal High Court Rules or that the Practice Direction had the effect of fettering the exercise of judicial discretion. He maintained that there was no breach of the appellant’s right to fair hearing.
The 343rd and 344th respondents did not address issues 1 and 2 in their brief.
The appellant’s application filed on 11/11/07 for an order for inspection of electoral materials was brought pursuant to Section 159 (1) & (2) of the Electoral Act 2006, Section 285 (2) of the 1999 Constitution and under the inherent jurisdiction of the Honourable Tribunal.
In paragraphs 10, 11, 12 and 13 of the affidavit in support, which are germane to the application it is averred as follows:
10. “I know that the grounds of the petition include, among others, electoral malpractices, rigging, multiple voting, over voting, snatching of ballot boxes and papers in different Polling Units of Ayedaade/Irewole/Isokan Federal Constituency in Osun State.
11. The Petitioner/Applicant require (sic) inspection of the polling documents and other electoral materials described in the motion paper herein which are in the custody of the 3rd and 4h Respondents and which were allegedly used in the conduct of the House of Representative election on the 21st April 2007 leading to the return of the 1st Respondent as duly elected.
12. That the Applicant require (sic) the inspection of the documents and materials stated on the motion paper to enable it maintain its petition.
13. That 1believe the Respondents will not be prejudiced by this application. ”
The application was not opposed by any of the counsel representing the different sets of respondents. It was accordingly granted at page 337 of the record in the following terms:
“The application is granted. This order shall apply to all the petitions listed above. Each of the application (sic) shall restrict himself to documents listed in his/her application while the representative of the 1st and 2nd respondents is to be allowed to be present during the inspection. ” Section 159 (1) of the Electoral Act under which the application was brought provides:
“(1) An order for an inspection of a polling document or an inspection of a document or any other packet in the custody of the Chief National Electoral Commissioner or any other officer of the Commission may be made by the Election Tribunal or the Court if it is satisfied that the order required is for the purpose of instituting or maintaining an election petition. (Underlining mine for emphasis).
It is significant that the order was granted on 14/7/07 after the time for instituting a petition had elapsed. The order sought was clearly not for the purpose of instituting the petition. It follows therefore, that in granting the order, the Tribunal accepted the averments in the affidavit in support and was satisfied that it was required for the purpose of maintaining the petition already filed.
Pursuant to that order the appellant carried out the inspection and a report was produced. By her motion on notice dated 26/11/07 (at page 394 – 448A of the record) the appellant sought the following reliefs:
1. ”Leave and order of this Honourable Tribunal permitting the petitioner to bring this application outside pre-hearing session.
2. Leave and order of this Honourable Tribunal permitting the petitioner to call Tiamiyu Adegboyega as additional witness and to file written deposition of the said Tiamiyu Adegboyega. 3. Leave and order of this Honourable Tribunal permitting the petitioner to file the report of Tiamiyu Adegboyega.
And such further or other order (s) as the Court may deem fit to make in the circumstances.”
The application was supported by a 22-paragraph affidavit. The 1st and 2nd respondents and the 343rd and 344th respondents filed counter affidavits in which they contended that the grant of the application would be prejudicial to them because the proposed witness statement was not frontloaded as required by paragraph 1(1) of the Practice Directions and that the grant of the application would “open the floodgates for endless litigation” as they may have to file similar applications. All the parties filed written submissions in respect of their positions. In a considered ruling delivered on 17/1/08 the Tribunal refused the application on the ground that “the Petitioner did not at the pre-hearing session indicate that she will bring an application of this nature and from the processes filed, no extreme circumstance has been shown to warrant the grant of the leave sought. Furthermore the grant of the application would run contrary to Paragraph 1 (1) of the Practice Directions.”
Paragraph 6 (1) of the Election Tribunal and Court Practice Directions 2007 provides:
“6.(1) No motion shall be moved. All motions shall come up at the pre-hearing session except in extreme circumstances with leave of the Tribunal.
Paragraph 4 (5) and (6) of the Practice Directions provides:
4. (5) The Tribunal or Court may at or before the hearing of a petition order or direct that evidence of any particular fact be given at the hearing in such manner as may be specified by the order or direction.
(6) The power conferred by sub paragraph 5 of this paragraph extends in particular to ordering or directing that evidence of any particular fact be given at the trial
(a) by statement on oath of information or belief/ or
(b) by the production of documents or entries in books; or
(c) by copies of documents or entries in books/ or
(d) in the case of a fact which is of common knowledge either generally or in a particular district by the production of a specified newspaper which contains a statement of that fact”
The above provisions empower the Tribunal to grant the orders sought if it is satisfied that the applicant has disclosed exceptional circumstances to warrant its grant outside the pre-hearing session. The main issue in contention here is what constitutes exceptional circumstances? Learned counsel for the respondents contended at the lower Tribunal, and indeed the Tribunal in its ruling held that the application could not be granted because the petition was. not frontloaded with the statement of the witness pursuant to Paragraph 1 (1) of the Practice Directions.
There can be no gainsaying the fact that the purpose of the Practice Direction is to complement the provisions of the Electoral Act by enhancing and facilitating the expeditious hearing of election petitions. Its purpose is to guide and regulate compliance with and observance of the provisions of the First Schedule to the Act and the Federal High Court Rules, where applicable. See: Adams vs Umar (2009) 5 NWLR (1133) 41 at 107 – 108 E – C; Yusuf vs Obasanjo (2003) 9 ” 10 SC 53. The basic principle of law is that rules of court are meant to be obeyed. However, in the implementation of rules of procedure or practice directions, the paramount consideration of the court is to do substantial justice between the parties. A court should not in the process allow strict adherence to technicalities becloud its sacred duty to do substantial justice. At the end of the day an impartial bystander should be satisfied that justice has been done to all the parties in the matter. See: Abubakar vs Yar’Adua (2008) 1 SC (Pt. II) 77 at 122 lines 1 – 7; Oni vs Fayemi {2008) 8 NWLR (1089) 400 at 443 C” E & 451 – 452 G – B.
Paragraph 1 (1) of the Practice Direction provides:
“1. (1) All petitions to be presented before the Tribunal or Court shall be accompanied by:
(a) list of all the witnesses that the petitioner intends to call in proof of the petition,’
(b) written statements on oath of the witnesses, and
(c) copies or list of every document to be relied on at the hearing of the petition.
Now the question is whether the appellant, in the circumstances of this case could have frontloaded the additional witness statement sought to be filed. A fact that is not in dispute is that the order for the inspection of documents was made after the time prescribed by Section 141 of the Electoral Act for presenting a petition (duly frontloaded as required by paragraph 1 (1) of the Practice Direction) had elapsed. The order was granted for the purpose of enabling the appellant to maintain her petition. There was no objection to the order being granted. In paragraphs 14, 15 and 16 of the affidavit in support of the application dated 26/11/07 it was averred thus:
14. “That the evidence in respect of which the additional witnesses are being called and the witness statement being filed relates to evidence which came to the knowledge of the petitioner pursuant to the aforesaid order of the Tribunal and was not available at the time of presentation of the petition.
15. That the report of the findings on physical inspection of the ballot papers and other election materials was recently completed on the 19h day of November 2007 due to the number of election materials inspected totalling 99,000 ballot papers from 3 local government areas in Osun State including other election materials. Attached as Exhibit A2 is the said report of Tiamiyu Adegboyega.
16. As a legal practitioner, I know that the purport of the aforesaid order of this Honourable Tribunal is to enable the petitioner to obtain evidence for the purpose of maintaining the petition which evidence was not available at the time of presentation of the petition and making of the order.
The proposed witness statement and inspection report were duly annexed thereto.
It seems to me that the above averments disclosed exceptional circumstances to warrant the exercise of the court’s discretion in favour of the applicant. It would be unreasonable in my view to expect the appellant to frontload a witness statement in respect of an order yet to be obtained and in respect of a report yet to be compiled. The Practice Directions should not be interpreted in such a manner that would lead to absurdity. The 1st and 2nd respondents have argued that the appellant ought to have indicated at the pre-hearing session that she intended to file an application to call this witness as an additional witness and tender the inspection report. With due respect to learned counsel, whether or not the appellant would need to tender a report of the inspection or call a witness in respect thereof would depend on the outcome of the inspection. This is borne out by paragraphs 8, 9 and 10 of the supporting affidavit at pages 396 and 397 of the record wherein it was averred as follows:
8. “That in the course of carrying out inspection the petitioners discovered that there was need to (sic) a forensic inspection of the election materials, and particularly the ballot papers to be scanned electronically for forensic analysis, in order to confirm the allegation of multiple thumb- printing of the ballot papers already pleaded in the petition.
9. That in carrying out the aforesaid order of the Tribunal the petitioner through their experts carried out both physical and forensic examination and inspections of the ballot papers and other election materials used for the elections.
10. That the petitioner considers it necessary’ to bring the evidence of the findings of both physical and forensic examination before the Tribunal by calling additional witnesses.
In granting the order for inspection, the Tribunal granted the request of the 1st and 2nd respondents that they be present during the inspection. They could not therefore contend that the calling of the additional witness or the tendering of the inspection report would take them by surprise or would be prejudicial to them. Having granted the application for inspection “for the purpose of maintaining the petition”, it amounted to shutting the appellant out when the Tribunal refused to allow her to file the written deposition of the person who participated in the inspection and to file his report in respect of the said inspection. This is particularly so having regard to the fact that the grounds of the petition include allegations that the election was characterised by various electoral malpractices including ballot box stuffing, illegal thumb-printing, multiple voting, lack of accreditation of voters in several polling units and voting without accreditation among others.
The Supreme Court held in Abubakar vs Yar’Adua (supra) at 122 lines 23 – 29 per Tobi, JSC thus:
I am in entire agreement with the Court of Appeal when the Court held that full opportunity should be given to parties in the interest of justice without due regard to technicalities. Gone are the days when courts of law were only concerned with doing technical and abstract justice based on arid legalism. We are now in days when courts of law do substantial justice in the light of prevailing circumstances of the case. It is my hope that the days of doing technical justice will not surface again.
And what is more, election petitions are sui generis and should be treated in that domain or realm.
In that case the Supreme Court affirmed the decision of the Court of Appeal granting leave to the applicants to call 213 additional witnesses and to file their witness statements.
I hold that the lower Tribunal wrongly exercised its discretion in refusing to grant the application and thereby denied the appellant her right to fair hearing guaranteed by Section 36 (1) of the 1999 Constitution.
With regard to the second issue, which also raises the issue of fair hearing, the undisputed facts are that the appellant applied for and the lower Tribunal issued two subpoena duces tecum et ad testificandum dated 30/10/07 and 21/2/08 respectively pursuant to Order 40 Rule 34 of the Federal High Court (Civil Procedure) Rules. Both were addressed to the Resident Electoral Commissioner, INEC, Osogbo who was commanded to attend court to give evidence on behalf of the petitioner and also to produce the documents specified therein.
On 3rd and 31st March 2008, representatives of the Resident Electoral Commissioner were in court in obedience to the subpoenas. On each date, the appellant’s application that the representative enter the witness box to testify was refused on the ground that the name of the witness and his statement did not accompany the petition in compliance with paragraph 1(1) and 4 of the Practice Direction.
A subpoena is a formal document issued by the court commanding a person required by a party to a suit to attend before the court at a given date, to give evidence on behalf of the party or to bring with him and produce any specified documents required by the party as evidence or for both purposes.

By a subpoena duces tecum the witness is ordered to produce specified documents while in the case of a subpoena ad testificandum the witness is ordered to appear and give testimony. See: Civil Procedure in Nigeria (2nd edition) by Fidelis Nwadialo at page 652; and Black’s Law Dictionary (8th edition) page 1467.
It is pertinent to observe at the outset that the procedure of summoning a witness to court by means of a subpoena duces tecum or ad testificandum is not provided for in the First Schedule to the Electoral Act nor in the Practice Directions. By virtue of paragraph 50 of the First Schedule to the Electoral Act recourse may be had to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, with such modifications as may be necessary to render them applicable having regard to the provisions of the Electoral Act.

There is no doubt that the Practice Directions provides for the front loading of witness statements along with the petition and that evidence at trial shall be by adoption of the written statements followed by cross-examination. As noted earlier in this judgment, although the Practice Directions are meant to be obeyed, in the words of Pats Acholonu, JSC in Duke vs Akpoyibo Local Government (2005) 19 NWLR (959) 130 at 142 – 143 H-A cited by Sankey, JCA in Oni vs Fayemi (supra) at 442 – 443 H – B, they “are to be used to discover justice and not to choke, throttle or asphyxiate justice. They are not a sine qua non in the just determination of a case and therefore not immutable. The situation where a subpoena has been issued presents a slightly different scenario. Firstly, by its very nature, a subpoena is issued by the court at the instance of one of the parties to command the appearance of a witness who is not involved in the matter before the court or who is an adverse party to the party calling him to produce specified documents or to testify, or both. It is therefore not envisaged that the statement of such a witness would accompany the petition. No procedure has yet been prescribed for the manner in which a subpoenaed witness should testify in election petition proceedings.
In the instant case, as observed by learned counsel for the appellant, the subpoenas, which clearly state that the witness would be required to produce documents and testify were issued and signed by the chairman of the Tribunal long after the time for presenting the petition had lapsed. In my view, it amounts to blowing hot and cold for the Tribunal to have issued a subpoena commanding a witness to appear in court to testify and then to turn around and refuse to allow him to testify on the ground that his witness statement was not frontloaded. In signing the subpoena the Tribunal must have been satisfied that it was not frivolous and that it was necessary for the just determination of the petitioner’s case. There was no application before the Tribunal to set it aside. The witness having been subpoenaed ought to have been sworn in to testify. Alternatively, in compliance with paragraph 50 of the First Schedule to the Electoral Act, the procedure for the issuance of subpoena under the Federal High Court Rules could have been modified to render it applicable in election petition proceedings by directing the applicant to depose the witness after he had appeared in court pursuant to the summons. See Paragraph 4 (5) & (6) (a) of the Practice Direction. In my view, that would have met the justice of the case. It was held in the case of Obi-Odu vs Duke (2006) 1 NWLR (961) 375 at 419 D, that having regard to the sensitive nature of election petition proceedings and from the point of view of public policy, it was better for the court to allow a party subpoenaed to obey the subpoena. The Tribunal would have been in a position at the conclusion of the trial to determine the probative value of the evidence elicited thereby. See also Buhari vs. Obasanjo (2005) 1 NWLR (941) 1.
In election petition proceedings it is in the interest of justice that parties are given full opportunity to ventilate their case without undue regard to technicalities. See: Abubakar vs Yar’Adua (2008) 4 NWLR (1078) 538 at 543 D ‘E2’80” F; Aregbesola vs. Oyinlola (2009) 14 NWLR (1162) 429 at 478-479 G-B. In the case of LASUN vs. AWOYEMI (2009) 16 NWLR (1168) 513 at 550 E-F, this court held per Ogunbiyi JCA thus:
“With the Tribunal having issued subpoena duces tecum et ad testificandum on a competent and compellable witness but prevented him from giving evidence, such tribunal cannot be said to have obeyed the hallowed principle of natural justice, equity and good conscience.. The case of the appellant.. … has not received fair treatment in the circumstance.”
In light of all that I have said hitherto, I am of the view that the refusal of the Tribunal to allow the appellant to file the inspection report and witness statement of Tiamiyu Adegboyega and the refusal to allow the subpoenaed witness to testify amounted to a breach of the appellant’s right to fair hearing, as it prevented her from presenting all the facts necessary to support her petition. In the circumstances issues 1 and 2 are hereby resolved in favour of the appellant against the respondents.
The position of the law is that the breach of the right to fair hearing vitiates the entire proceedings, rendering same null and void and of no effect, no matter how well conducted. See: Ceekay Traders Ltd. Vs General Motors Co. Ltd. (1992) 2 NWLR (222) 132; Adigun vs A.G. Oyo State (1997) 1 NWLR (53) 678; Salu vs Egeibon (1994) 6 NWLR (248) 23 at 44.

Having resolved issues 1 and 2 in favour of the appellant, and found that the trial was vitiated for lack of fair hearing it is not necessary to consider the remaining issues raised in this appeal. In conclusion the appeal succeeds. I accordingly allow it. The 3 Rulings and the judgment of the Governorship and Legislative Houses Election Petition Tribunal, sitting at Osogbo in petition No. NA/EPT/OS/7/07 delivered on 17th January 2008, 3rd & 31st March, 2008 and 31st May 2008 respectively are hereby set aside for lack of fair hearing. It is hereby ordered that the President of the Court of Appeal shall constitute a fresh panel of the Osun State Governorship and Legislative Houses Election Tribunal to hear the petition de novo. The petition shall be given an accelerated hearing.
The parties shall bear their respective costs in this appeal.

SIDI DAUDA BAGE, J.C.A. I have had the opportunity of reading in draft the lead judgment of my learned brother, Kekere-Ekun, J.C.A., just delivered.
I agree with the reasonings and conclusions that, the appeal has merit and I also allow same. I abide by the order awarding no costs.

MODUPE FASANMI, J.C.A: I have had the privilege of reading in advance the judgment of my learned brother K. M. O. Kekere-Ekun J.C.A just delivered.
She has fully considered and resolved the issues for determination in this appeal. I respectfully adopt the reasoning. The appeal is meritorious and it succeeds. I abide by the consequential orders made.

Appearances

Tope Adebayo Esq;
Kehinde OginiFor Appellant

AND

Chief Abayomi Aliyu
Tewo Lamuye Esq;
Miss thelma Otaigbe
H.S. Tsuma
M.O. Adeokun Esq.;For Respondent