ALL PROGRESSIVE GRAND ALLIANCE (APGA) & ANOR V. CHIEF CHRISCATO AMEKE & ORS
(2012)LCN/5112(CA)
In The Court of Appeal of Nigeria
On Monday, the 23rd day of January, 2012
CA/E/EPT/50/2011
RATIO
CIRCUMSTANCES IN WHICH A COURT OF APPEAL IS ENTITLED TO INTERFERE WITH AND REVERSE THE FINDINGS OF FACT OF THE COURT OF TRIAL
The law is also trite that as an Appellate Court we cannot interfere with the findings of facts of the trial tribunal which enjoyed such advantage and privilege as afore said unless there are exceptional circumstances. However, where as in this case the findings of fact of the Tribunal are perverse and not borne out of the totality of the evidence before it, and have clearly led to a miscarriage of justice against the Appellants, this court will interfere and set aside the perverse findings. Also where as in this case, the duty of this Court is merely to draw inferences from proved facts and documentary evidence tendered before the trial Tribunal; we are in as good a position as the court of first instance to so do. In Dumez v. Nwakhobia earlier cited, Mahmud Mohammed JSC put the position of the law on the scenario created by the Tribunal which warranted this appeal, so succinctly thus: “The circumstances in which a Court of Appeal is entitled to interfere with and reverse the findings of fact of the Court of trial are well settled. A Court of Appeal will only interfere with a finding of fact of the court of trial when it is clear that the finding is perverse, and not flowing from facts relied upon, or is not a proper exercise of the court’s judicial discretion, See Onowan & Anor. v. Iserhein (1976) 1 NMLR 26. Where also there is ample evidence and the trial court has failed to evaluate it and make findings, the Court of Appeal is entitled to evaluate such evidence and make findings which the court ought to have made ….. See Shell Development Co. of Nig. Ltd. v. His Highness Pere Cole & Ors (1978) 3 S.C. 188. However, there must be before the Court of Appeal a ground raising the issue directly or on which the determination of the issue depends. Chief Frank Ebba v. Chief Warie Ogodo & Anor. (1984) 4 S.C. 99.” See also Onwuka v. Omogui (1992) 3 NWLR (pt.230) 393; Fan Milk Ltd. v Edemeroh (2000) 9 NWLR (pt.672) 402; Woluchem v. Gudi & Ors. (1981) SSC 519; Ebba v. Ogodo (1982) SC 79; Akulaku v. Yongo (2002) 5 NWLR (pt.759) 135 and Military Governor of Ondo State & Ors. v. Kolawole & Ors. (2008) 35 NSCQR 506 at 532 per Mukhtar JSC. PER. IGNATIUS IGWE AGUBE, J.C.A.
THE PARAMOUNT IMPORTANCE OF JURISDICTION IN THE JUDICIAL PROCESS
The case of FRN v. Ifeagwu (2003) 15 NWLR (pt.842) SC 113 at 212 paras E-G; where Tobi JSC held thus: “I think Prof. Adesanya is right because of the paramount importance of jurisdiction in the judicial process, estoppel, an equitable remedy cannot drown the lack of jurisdiction of a court of law. Where a court or tribunal lacks jurisdiction and the issue is raised, the adverse party cannot succeed in pleading that the action is caught by estoppel. This is because estoppel lacks the legal capacity to revive an act which is a nullity ab inito. A court which holds that an issue of jurisdiction cannot be raised because the party is estopped from doing so will not be doing equity to the adverse party. The moment an act of court or tribunal is a nullity, estoppel cannot resuscitate it.”See also Macfoy v. UAC (1961) 3 ALL ER 1169 per Lord Denning at 1172; The position of the law as expounded by Tobi JSC above is not in doubt and would have been apposite if the Tribunal had lacked the jurisdiction to entertain the petition from the onset by virtue of any feature or non-fulfilment of any condition precedent. PER. IGNATIUS IGWE AGUBE, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ABUBAKAR ALKALI ABBA Justice of The Court of Appeal of Nigeria
Between
1. ALL PROGRESSIVE GRAND ALLIANCE (APGA)
2. CHINEDU FRANCIS IDIGO Appellant(s)
AND
1. CHIEF CHRISCATO AMEKE
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. MR. TONY OKEY NWOYE
4. PEOPLES DEMOCRATIC PARTY (PDP) Respondent(s)
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the leading Judgment): On the 22nd day of December, 2011, this Honourable Court pronounced the judgment in this interlocutory appeal by the Petitioners against the Ruling of the National Assembly/Legislative Houses Election Tribunal sitting at Awka, Anambra State Coram: Hon Justice N. U. Gummi (Chairman), Hon. Justice T. A. Kume and Hon. Justice I. B. Garba; wherein they dismissed the Appellants’ Petition on the 2nd day of November, 2011; in limine on the ground that same had been abandoned by the Petitioners.
CONCISE STATEMENT OF FACTS
The facts of the case as stated by the Appellants are that they commenced the proceedings by way of the petition which is at pages 1-97 of the Records and the respective Replies of the Respondents are at pages 98 – 354 of the Records. The Appellants subsequently filed a Reply to the Reply of the 1st Respondent. See pages 354 – 258 of the Records.
According to the learned counsel to the Appellants, he made an application by way of letter dated 22/6/2011 for the issuance of Pre-hearing Notice which the Secretary of the Tribunal acknowledged on 24/6/2011 by endorsing on the duplicate copy of the said letter. Page 517 of the Records refers. On 12th July, 2011, the first Tribunal was said to have granted the 2nd Respondent’s motion to regularize its Reply to the petition which had been filed out of time; as reflected at Page 447-448 of the Records refers wherein the Tribunal ordered that: “This matter is hereby set down for Pre-hearing on Tuesday 19/7/2011 at 10:30am, Learned Counsel for the petitioners shall file and serve the necessary forms accordingly. The learned counsel for the Respondents shall file and serve their Answers to the Questions on the Pre-hearing information sheet. “Pages 448 – 449 of the Records refers.
Pursuant to the Order of the Tribunal the Appellants and the 1st Respondent duly completed and filed the pre-hearing information sheets Form TF 008 at page 433-446 of the Records and on the day fixed for pre-hearing i.e 19/7/2011, the Tribunal took the two applications pending before it namely an application directing the 2nd Respondent to produce Electoral Materials and the 1st Respondent’s application praying the Tribunal to strike out the petition and/or certain paragraphs of the petition. The tribunal adjourned to render its Ruling. After the Ruling, the Tribunal extended the pre-hearing session by seven days and adjourned to 4th August 2011 for continuation of pre-hearing and closure.
On 4th August, 2011, the Tribunal was informed that there were no pending applications and that the pre-hearing session ought to be closed. The Tribunal then observed as follows:
“We do observe that this matter would seem to have been set down for pre-hearing suo-motu by this tribunal on 12/7/2011 upon being told that pleadings had been completed in the matter on the same by the service of the 3rd and 4th Respondents Reply on the petitioner on 12/7/2011. It is observed that there was no subsequent application by the petitioner for issuance of pre-hearing notice.
In the light of the Supreme Court decision in Okereke v. Yar’adua & Ors (2008) 12 NWLR (Pt.1100) 95 at 120-121, we would like the petitioners counsel to address us whether the pre-hearing could properly have been constituted without an application and whether this tribunal does not lack jurisdiction to continue in this matter.” See pages 465-466 of the Record.
Counsel for the Petitioners was said to have initially asked that the matter be stood down, but subsequently asked for an adjournment to adduce evidence by way of affidavit to show that the Appellants did make the said application by a letter to the Secretary of the Tribunal and to challenge the Record of the tribunal. See pages 466-467 of the Record.
Upon that application Counsel for the 1st and 2nd Respondents opposed the application for adjournment. See pages 465-466 of the Records. The Tribunal did not however deliver its Ruling on the application for adjournment for in its words:
“The Tribunal reserved its ruling on this application for adjournment and advised him to address it on the issue raised suo-motu.”
In other words, the Tribunal did not determine whether or not to adjourn to enable the Appellants present facts in answer to the issue raised that same morning by the tribunal. The Tribunal subsequently refused the application for adjournment sought by the Appellants’ Counsel to enable him
respond effectively to the issue raised suo motu by the Tribunal that morning and challenge the Record of the Tribunal; and thereupon proceeded to consider the issue it had suo-motu raised and for which it had denied the Appellants request for an adjournment, and came to the conclusion that the petition was an abandoned petition and dismissed same. See page 470-476 of the Records.
The Appellants then appealed the decision of the tribunal dismissing the petition as abandoned to this Court and after hearing the arguments of counsel and the Briefs filed and exchanged; the Court in a reserved Judgment held thus:
“The Appeal is meritorious and succeeds in part. The ruling of the tribunal striking out the paragraph of the petition as set out at page 1058 of the record is affirmed. Flowing from the success of the Appellants issues 2 and 3, it is hereby ordered as follows.
1. The petition is hereby sent back to the tribunal for continued adjudication.
2. The Appellants are hereby granted the adjournment to file affidavit evidence to show that they made application for the issuance of pre-hearing form by letter to the Secretary of the Tribunal. They are to do this within 2 days of re-listing the petition before the Tribunal.
3. The Tribunal is to thereafter entertain the issue it had raised suo motu in the light of whatever evidence the Appellants place before it and come to its decision on the issue”.
Against the backdrop of the above decision of the Court of Appeal, the Appellants in compliance thereto filed the required affidavit as can be gleaned at pages 515-516 of the Records. They annexed to the said affidavit two documents, Exhibits A and B. Exhibit A is said to be the letter of Application by the Appellants counsel for issuance of pre-hearing Notice as in Form TF008 dated 22nd June, 2011 which was said to have been duly received and acknowledged by the Secretary of the Tribunal on 22/6/2011 (Page 517 of the Record). Exhibit B is said to be a copy of the 2nd Appellant’s International passport attesting to his trip to the United States of America and supporting his averment in paragraph 5 of the affidavit as can seen at Page 518 of the Records.
The 2nd Respondent filed a counter affidavit in opposition to the 2nd Appellant’s affidavit at pages 519-520 of the Records while the counter-affidavit of the 1st Respondent is at page 528-530 of the Records.
The Appellants further Affidavit to the 1st Respondent’s counter-affidavit in reaction thereto is at page 531-533 of the Records wherein the said Further Affidavit, the Appellants annexed the another application by the learned counsel for the 1st Respondent in another petition to show, among other things, that the applications were endorsed by the same person as the signatures thereon can attest and that the applications were neither filed, stamped nor served on the opposing party and did not contain the name of the Officer of the Tribunal that acknowledged receipt of the letter. The letters, Exhibits B, B1 -B3 are said to be at page 534-537 of the Records.
A Further Affidavit by the Appellants in reaction to the 2nd Respondent’s counter affidavit similar to the 1st Further Affidavit filed together with the Exhibits (similar application by letter as in Exhibit A, the Appellants application by letter) are on pages 538-544 of the Records while the 2nd Respondent’s further counter affidavit is on pages 544 A – 546 of the Records.
After the parties had joined issues on their affidavits and made their submissions on whether the Application for issuance of pre-hearing forms was made by the Appellants, the Honourable members of the Tribunal in a bench Ruling, according to the Appellants, erroneously came to the conclusion as they did at page 556 of the Records.
The Appellants took the view that Tribunal came to the above erroneous conclusion to call the Secretary as a witness in order to resolve the perceived sharp conflict in the evidence of the parties suo-motu without asking the parties to proffer oral evidence as to such facts or hear oral evidence of the deponents of the said affidavits contrary to Section 116 of the Evidence Act, 2011.
Following the Ruling, the Secretary was said to have taken the stand at the witness box as directed by the Tribunal and denied receipt of Exhibit A, the Appellants letter and under cross-examination by the Appellants counsel, the Secretary/witness admitted receiving Exhibit B and B1 and signing/endorsing on them (the proceedings of the Tribunal at pages 553-559 refer). Thereafter, the Tribunal was said to have stood down the petition to consider its Ruling; and in that Ruling, after finding similarities in the signatures acknowledging the application in Exhibit A and the Exhibits B, B1 – B3; erroneously held that the said similarities in the signatures cannot sufficiently dislodge or discredit the Secretary/witness’ evidence and further relying on the demeanour of the witness; the Tribunal held that the petitioners did not apply to the Secretary for the issuance of Pre-hearing Notice. Pages 566 – 572 of the Records refer.
Having come to the conclusion aforesaid, the Tribunal on page 560 – 561 invited counsel to address it on the effect of its Ruling and Appellants’ application for adjournment was refused though the matter was subsequently stood down for 5 minutes at the end of which counsel to the parties made their submissions (see page 561-565 of the Records). Thereafter, the Tribunal in its Ruling held that the petition was abandoned and dismissed same under paragraph 18(4) of the 1st Schedule to the Electoral Act, 2010 (as amended).
See pages 573 – 576 of the Records.
Dissatisfied with the Ruling of the Tribunal, the Appellants filed their Notice of Appeal with four Grounds as contained at pages 577 – 581 of the Records.
ISSUES FOR DETERMINATION
In line with the Rules of this Court, Briefs were duly exchanged following the transmission of the Record of proceedings of the Tribunal to this Honourable Court. In the Brief settled by O.A. Obianwu, SAN and six other counsel on behalf of the Appellants, three Issues as reproduced here under were formulated for determination thus:
i. Whether there were conflicts in the affidavit evidence of the parties not resolvable by reference to the documentary evidence before the Tribunal to warrant the tribunal to suo-motu call for oral evidence (Ground 3).
ii. Whether the Tribunal was not in grave error when relying solely on the incredible oral evidence of the secretary to the tribunal sic) it came to the conclusion that the Appellant did not make an application for the issuance of Pre-hearing Notice (Grounds 2 & 4).
iii. Whether the tribunal was correct in its conclusion that the petition was an abandoned petition. (Ground 1).
For the 1st Respondent, Prof. Ilochi A. Okafor, SAN, Arthur Obi Okafor, SAN and three other learned counsel in the Brief settled by them formulated two Issues as calling for determination couched in the following terms:
1. Whether there were conflicts in the affidavit evidence of the parties not resolvable by reference to the documentary evidence before the Tribunal to warrant the Tribunal to suo motu call for oral evidence.
2. Whether the Tribunal below was right in the approach it adopted in this matter in acceding to the request of the Respondents for oral evidence to be called to resolve the knotty issue of whether the application for issuance of pre-hearing notice produced from the private coffers of the Appellants was received and endorsed by the Tribunal Secretary and in the ultimate conclusion it reached after receiving evidence of the Tribunal Secretary.
In the 2nd Respondent’s Brief settled on its behalf by O.J. Nnadi, SAN and two other learned members of O.J. Nnadi, SAN & Co.; three Issues as here under reproduced were also formulated as follows:
(1) Whether the Tribunal was right to call oral evidence to resolve the conflict in the affidavit of the parties as to whether or not the Secretary of the Tribunal received exhibit ‘A’ of the Appellants, (Ground 3);
(2) Whether the Tribunal was right in holding that the Appellants did not apply for pre-hearing Notice on the evidence before the Tribunal (Ground 2).
(3) Whether the Tribunal was right in dismissing the petition have found as ordered by this court that no application for pre-hearing Notice was made and received by the Secretary of the Tribunal on 24/6/2011 or at any other date. (Ground 1).
The 3rd Respondent did not file any Brief as he did not partake in the hearing of the Appeal whereas, the 4th Respondent in the Brief settled by Clems Ezika Esq; and four other members of his Chambers on their part, adopted the three Issues formulated by the Appellants.
APPELLANTS’ ARGUMENTS
ISSUE NO. 1
“Whether there was conflict in the affidavit evidence of the parties not resolvable by reference to the documentary evidence before the tribunal to warrant the tribunal to suo motu call for oral evidence.
Arguing this Issue, learned counsel for the Appellants answered the question posed by the Issue in the negative contending that there were no conflicts in the affidavit evidence as the substance of the Appellants’ affidavit evidence was not rebutted by the Respondents; more so, when the perceived conflicts were resolvable by reference to the documentary evidence before the Tribunal, which the tribunal neglected to advert to.
Referring to the Ruling delivered by the Tribunal after parties had joined issues in their affidavit evidence and the respective learned Counsel had rendered their submissions in elucidation of the issue; he submitted that the Tribunal was wrong in holding that the affidavits are in sharp conflict and in ordering oral evidence of the Secretary of the Tribunal in resolution of the purported conflict. Placing reliance on the case of Essien v. Inyang (2011) LPEAR-CA/C/103/2009 (a decision of the Court of Appeal, Calabar Division); it was argued that there were no conflicts in the affidavit evidence and thus no basis for the resort to oral evidence and as such the Honourable Tribunal failed to appreciate this point and the position of the law that for conflict to exist, such conflict must relate to material fact and must be real.
The learned Counsel pointed out that the controversy here flowing from the point raised suo motu by the former Tribunal and which the Court of Appeal in its judgment granted the appellants leave to file affidavit was whether the Appellants applied by letter to the Secretary of the Tribunal for Pre-hearing Notices.
He further alluded to the fact that the 2nd Appellant in his affidavit of facts at page 515-516 of the Record clearly showed that he indeed applied for Pre-hearing Notice by way of letter to the Secretary of the Tribunal which letter he annexed as Exhibit A and also averred that he was outside the shores of this Country and could not be reached for a copy of the application by the time the former Tribunal raised the issue suo motu. He noted that a copy of his International Passport was also annexed and marked Exhibit B. To buttress this point, he reproduced the relevant parts of the Appellants’ affidavit; the 2nd Respondent’s Counter-affidavit in reaction thereto and the Further affidavit of the Appellant in answer to the said counter affidavit.
Page 531-544 of the Records were further alluded to in contending that from all they have reproduced above, the Petitioners’ case was that the Secretary endorsed/acknowledged Exhibit A – the copy of the application they made for Pre-hearing Notice – which the previous Tribunal said it could not trace in its file. He maintained that the Respondents in their respective counter affidavits stated that Exhibit A did not show the name of the receiver nor his or her rank neither was it stamped with the tribunal stamp and accordingly the petitioners annexed a similar application by letter for issuance of prehearing notice by various Counsel to the Secretary of the Tribunal in other petitions which are marked Exhibit B, B2-B3 (see pages 534-537 of the Record), to challenge and contradict the averments of the Respondents that such applications to the Secretary of the Tribunal for the issuance of Prehearing Notice were neither stamped with the stamp of the tribunal nor contain the name and or rank of the receiver but were indeed received by the same Secretary.
Learned Counsel pointed out further that their above assertion was neither challenged nor controverted by any of the Respondents; as the 1st Respondent for instance did not file any further counter affidavit to disown the Exhibit B1 which his Counsel made. 2nd Respondent’s further Counter affidavit, on the other hand, he further asserted, did not go to the substance of the point made with respect to Exhibits A, B, B1-B3 while the 2nd Appellant’s averment in his affidavit that he personally delivered Exhibit A to the Secretary of the Tribunal who acknowledged same in his presence was not challenged in any of the counter affidavits of the Respondents.
Accordingly, it was submitted again that there was absolutely no conflict on the material point and the Honourable Tribunal ought at that point, having seen the similarities in the unchallenged Exhibits B, B1-B3 with Exhibit A, to have found that indeed the Appellants made the application. On the above footing, the Tribunal was therefore wrong when it held that there was sharp conflict since, according to learned Counsel, it cannot be contended as the basis for the alleged conflict as the tribunal sought to do; that when the Respondents confronted the Secretary of the Tribunal with Exhibit A, he or she denied ever receiving the Exhibit.
This is because, learned counsel maintained; the alleged information by the secretary was predicated on inadmissible evidence which ought to be struck out by the Tribunal. For this submission, he referred us to the averments of the 2nd Respondent in paragraph 11 of his Counter Affidavit (pages 519-520 of the Record), and paragraph 5 of his (2nd Respondents) Further Affidavit which he contended grievously offended Sections 115 (3) and 115 (4) of the Evidence Act, 2011 (formerly sections 88 and 89 of the Evidence Act, 1990) and 115 (1) of the Evidence Act, 2011; which sections he also reproduced.
Still on the 2nd Respondent’s Counter and Further Counter- Affidavit; learned Counsel for the Appellants posited that the Respondent did not state in his said paragraph 11 of the Counter affidavit how he came by the information averred therein; which of the Registrars that gave the information, the name of the Registrar and whether he believed him or her or not. The same scenario he added, played out in his paragraph 5 of the further counter affidavit as the name of the Secretary who allegedly gave him the information was not given or stated especially in the circumstance where the Tribunal has at least two Secretaries.
Learned Counsel for the Appellants further cited Section 115(4) of the Evidence Act, 2011 (formerly Section 89 of the Evidence Act 1990) which makes it mandatory that the name of the informant must be given as failure to do so renders the deposition unreliable and liable to be struck out and the cases of Osian v. Flour Mill of Nigeria Ltd. (1968) ALL NLR 432: 434, Josien Holdings Ltd. v. Lornamead Ltd. (1995) 1 NWLR (part 371) 254 at 265; where the Supreme Court interpreted the section and so held and restated this fundamental point. Cedar Stationeries Ltd v. I. B.W.A Ltd (2000) 15 NWLR (Part 690) 338: 349-350 paragraphs H-D where this Court was said to have taken a similar stance and struck out the offending paragraph of the affidavit was further cited in support of his above submission.
The learned Counsel for the Appellants took the view that the Tribunal allegedly attached enormous weight to the offending averments in paragraphs 11 of the counter affidavit and paragraph 5 of the further counter affidavit of the 2nd Respondent, contrary to the afore stated decisions of the apex Court and this Court; in arriving at the conclusion that the affidavits of the parties are in “sharp conflict” According to him, had the tribunal towed the proper legal line, it would have either struck out those offending paragraphs or attached no weight to them so as not to have fallen into the fundamental error it did in calling for oral evidence suo motu.
Learned Counsel for the Appellants in another wicket asserted that the law is settled that even where there are indeed conflicts, but the conflicts can be resolved on the ground of law, there is no need to call oral evidence (RE: Otuedon (1995) 4 NWLR (pt.392) 655 Ratio 6). Again, it was further asserted; where the facts are inadmissible as has been shown in the instant case (of paragraph 11 & 5 of the 2nd Respondent’s Counter Affidavit and Further Counter Affidavit), the Court should not call oral evidence to resolve the conflict (L.S.D.P.C. v. Ado/Stamm Inter Nig. Ltd (1994) 7 NWLR (pt.358) 545 ratio 3(Supreme Court) ).
Assuming but not conceding that the averments in the affidavits of the parties are in conflict, it is our humble submission that such perceived conflict were resolved by reference to the documentary evidence before the Tribunal, which the tribunal neglected to advert to. The Appellants exhibit similar applications, Exhibits B, B1-B3 made by other Counsel including the 1st Respondent’s Counsel, to show uniformity of the acknowledgment made by the Secretaries without affixing the official stamp of the tribunal with Exhibit A.
As an alternative argument, the counsel for the Appellants posited that the Tribunal ought to have adverted to the Exhibits and see their similarities and should have resolved whatever perceived conflict in the averments in the affidavit of the parties by reference to the said Exhibits and would not have fallen into the grave error it did of suo motu calling the Secretary of the Tribunal to give evidence; when the Tribunal even in its later Ruling on that same day compared the signatures in Exhibits B-B3 with Exhibit A and found therein similarities. Relying on the cases of Ezegbu v. F.A.T.B Ltd (1992) 1 NWLR (Part.220) 699: 720 paragraphs A-B; Magnusson v, Koiko (1991) 4 NWLR (part 183) 119 ratio 11; Pharmacist Board v. Adebesin (1974) 5 S.C 43; to submit that the law is well settled that in a situation of conflicting affidavit evidence where the court has enough documentary evidence at its disposal as in the instant case, it can without calling oral evidence suo motu resolve same by resorting to the documentary evidence.
From the foregoing, he urged us to resolve this Issue One in favour of the Appellants by holding that the Tribunal erred in calling oral evidence as there were no conflicts in the affidavit evidence; which in any event were resolvable by reference to documentary evidence, Exhibits B, B1-B3. For this submission he placed reliance on the decision of this Court in CA/E/EPT/21/2011: Hon. Chris Nweke Ndigwe & Anor v. Kene Chukwu Chukwuemeka: (unreported) delivered on 28th September, 2011 per Hon Justice (PJ)? where this Court in a similar situation held that the lower Tribunal erred in calling oral evidence in circumstances where there were no conflicts in the affidavit evidence of the parties and allowed the appeal on that ground.
Before rounding up on this issue, he also canvassed the point that the Tribunal suo motu, and without inviting contributions from Counsel, directed that oral evidence should be adduced and promptu ordered Secretary of the Tribunal to take the witness box. He argued that it is settled law that for a Court to raise any issue not canvassed before it suo motu, the parties must be afforded the opportunity to address on it; adding that in the instant case, after full argument of the motion by both parties, all that was left for the Court to do was do give its Ruling. According to him, while relying on the cases of Dairo v. Union Bank of Nigeria Plc. & Anor (2007) NWLR (pt. (1059) 99: 137-738 per Muhammed JSC and Registered Trustees of AMORC v. Awoniyi (1994) 7 NWLR (pt 355) 154; the question whether there was any conflict in the affidavit evidence which needed oral evidence for it to be resolved is a determination which the Tribunal ought not to have made without first hearing from the Counsel to the parties.
He finally submitted that the decision of the Tribunal suo motu that the evidence of the Secretary of the Tribunal is material and necessary to resolve the perceived conflict and proceeding on to order that he be invited to the witness box to give oral evidence; is contrary to the law particularly Section 116 of the Evidence Act, 2011. Accordingly, he claimed that since the Records show that it was the Tribunal which suo motu called the Secretary without reference to the Parties; the Tribunal no doubt by this act descended into the arena of conflict, and chose and called a witness for a party.
He urged us to hold that the entire proceedings regarding the taking of oral evidence are rendered null and void and to resolve this Issue in favour of the Appellants.
ISSUE NO. 2
“Whether the Tribunal was not in grave error when relying solely on the incredible oral evidence of the Secretary to the Tribunal it came to the conclusion that the Appellant did not make an application for the issuance of Pre-hearing Notices”.
On this Issue, learned counsel recalled their submissions on Issue Number One that they had shown that the affidavit of the parties were not in conflict to warrant calling oral evidence to resolve same and further that whatever perceived conflicts in the affidavit evidence would have been resolved by reference to the documentary evidence i,e Exhibits B, B1-B3 before the Tribunal. Furthermore, they had also submitted that the Tribunal by calling the Secretary as a witness to resolve the perceived conflict in the affidavit evidence of the parties quite clearly descended into the arena and also violated the sacred provision of Section 116 of the Evidence Act, 2011.
Apart the above grouses of the Appellants, it is their further quarrel with the Tribunal that the Honourable members went further to accept the incredible bare denial of the Secretary that he received the Appellants’ application for issuance of Pre-hearing Notice in Exhibit A after it (the Tribunal) had compared the signatures in Exhibits B, B1-B3 and found that they are similar to the signature in Exhibit A.
Learned Counsel to the Appellants pointed out that the only reason given by the Tribunal in preferring the oral bare denial of the witness that he received Exhibit A and acknowledged thereon to its finding that the signature appearing in Exhibits B, B1-B3 are similar to the contentious Exhibit A; is the demeanour of the witness. He then reproduced the findings of The Tribunal and submitted that having found the similarities in the signature in the said Exhibits, the Tribunal had no business relying on the demeanour of the witness to refuse or fail to accord Exhibit A the deserved weight and hold that indeed the Appellants made the application. Relying again on the case of Nigeria Dynamic Ltd w Ibrahim (2002) 8 NWLR (pt.768) 63 Ratio 7; learned counsel submitted that demeanour alone is not the yard stick for believing or disbelieving a witness as the court must pay attention to other pieces of evidence that tend to strengthen or weaken such claims. He maintained on the authority Adenle v. Olude (2002) 18 NWLR (pt.799) 413; where the Supreme Court held that in resolving the issue of due execution of a document where the alleged maker denies his signature one of the course of options open to the court was to compare the signature submitted by the alleged signatory to be his own with the one under contention under Section 108 (1) of the Evidence Act.
Going by the above authority, he then submitted that the trial Tribunal should not have used the demeanour or the alleged disinterestedness of the witness to determine the credibility of the Secretary of the Tribunal on the denial of Exhibit A and or his signature on the said Exhibit A. Learned counsel for the Appellants quoted in extenso the dictum of Uwaifo JSC in the above cited Adenle v. Olude (2002) 18 NWLR (pt 799) 413; at page 431-432 paras. E-E, and argued further that in the instant case, the witness (the Tribunal’s Secretary) admitted during cross-examination by the Appellants’ Counsel that: “I have seen the further affidavit and attached Exhibit B. Yes I received Exhibit B. I have seen Exhibit B1 and 1 received that application. Yes in receiving these applications I signed on Exhibits B & B1…”; and the Tribunal was right to have compared the admitted Exhibits B & B1 with the disputed Exhibit A and correctly found similarities therein. He however contended that the Tribunal strayed when it held that its said finding cannot sufficiently dislodge or discredit the evidence of the Secretary considering the fact that the finding of the tribunal on the similarities in the signatures on the said Exhibits B, B1-B3 with Exhibit A was sufficient for the Tribunal to hold that the Appellants made the questioned Application.
Learned counsel then quoted the Supreme Court’s decision in Ayanru v. Mandilas Ltd (2007) 10 NWLR (Pt.1043) 462: 481 paras A – E., and contended further that the oral evidence of the Secretary of the Tribunal was belied by the finding of the Tribunal that the signatures on Exhibit A and B, B1-B3 were similar; in other words, according to counsel, the only reasonable conclusion to be made on the said finding of the Tribunal is that the Secretary lied when he said he did not receive Exhibit A. To turn volte face after making the finding to say that the finding cannot dislodge or discredit the evidence of the Secretary, learned counsel maintained, is tantamount to saying that even though the Secretary lied when he said he did not sign on Exhibit A, he at the same time said the truth.
It was therefore the view of learned counsel that the Tribunal was wrong to have so held; more so when there was no evidence before the Tribunal that Exhibit A bore a forged signature and the Tribunal did not so find. In denying the making of Exhibit A, learned counsel further argued; the witness (the Secretary of the Tribunal) either implied that the said Exhibit was forged or faked but that neither the said witness (the Secretary) nor the Respondents however adduced any iota of evidence in proof thereof. Taking umbrage under the Supreme Court case of Adelaja v. Alade (1999) 6 NWLR (Pt. 608) 544: 557-558, paras F-A and Ikoku v. Ikoli (1962) 1 SCNLR 307; on the burden of proof of forgery, he argued that where a party denies making a document which he is alleged to have executed or thumb printed such a denial is tantamount to saying that the document is a forgery or fake.
In such a situation, he added, the burden of proof of the forgery rests on the party who alleges and that since forgery is a crime, the onus was on him to prove same beyond reasonable doubt. Still on the issue of non proof of forgery, he relied on the dictum of Pats Acholonu, JSC (of the blessed memory), in Amadi v. Orisakwe & Ors (2005) 7 N.W.L.R (pt.924) 385; 402 paras F-G; to insist that none of the Respondents averred in their counter affidavit that Exhibit A was forged and no iota of evidence was adduced to that effect.
He finally submitted on this Issue that the decision of the Tribunal which was predicated on the mere denial of the Secretary of the Tribunal that he received Exhibit A and that the Appellants did not make an application for the issuance of the Pre-hearing Notice, is against the weight of evidence. The decision according to him is perverse and had occasioned miscarriage of justice. Accordingly, we were urged again to resolve Issue No. 2 in favour of the Appellants and hold that the Tribunal was wrong in coming to the conclusion that the Appellants did not make an application for the issuance of Pre-hearing Notice.
ISSUE NO. 3
Whether the Tribunal was correct in its conclusion that the petition was an abandoned petition.
On this Issue, the learned counsel for the Appellants also answered the question posed in the negative, submitting that the Tribunal was wrong on the facts and circumstances of the matter when it dismissed the Appellants petition under paragraph 18(4) of the 1st Schedule to the Electoral Act, 2010 (as amended) as an abandoned petition predicated on the erroneous conclusion of the Tribunal in its earlier ruling that the Appellants did not make an application for issuance of Pre-hearing Notice.
He drew our attention to their contentions on Issue No. 2 above that the decision of the Tribunal was perverse especially in view of the clear finding of the Tribunal that the signatures in the contested Exhibit A and Exhibits B, B1-B3 (which the Secretary admitted endorsing), were similar and prefaced their argument on this Issue with the adoption and incorporation of their submissions on Issue 2. In essence, it was their position that the Appellants applied for issuance of Pre-hearing Notice by letter marked Exhibit A dated 22nd June, 2011, See page 517 of the Records.
In another score, learned counsel argued that assuming without conceding that the Appellants did not make the said application for Prehearing, it was a grievous error and a denial of Justice for the Tribunal to dismiss the petition as abandoned when Pre-hearing had been concluded. The Tribunal according to him, failed to advert to the fact that the parties had filed their Pre-hearing information Sheets, Form TF008 which is subsequent to an application. Learned counsel also was of the view that the Pre-hearing session having commenced and concluded it was no longer open to the Tribunal to hold as it did that the Appellants abandoned their petition. He asserted that paragraph 53 of the 1st Schedule to the Electoral Act, 2010, Sections 167(c) and 168(1) of the Evidence Act, 2011, bar any assertion which seeks to impugn the propriety of the mode of commencing the Pre-hearing session, which had in fact been concluded; as the trial Tribunal ought to have heeded the admonition of this Court in Adams v. Umar (2009) 5 NWLR (Pt 1133) 41: 151 and CA/YL/EPT/ADS/HA/2/2011 – Mr. Simon Isa & Anor v. Alhaji Sa’ad Tahir (unreported) delivered on 6th September 2011.
Learned counsel emphasized that the parties having filed the prehearing information sheets, Form TF008 which is subsequent to an application, raises a presumption under Sections 167(3) and 168(1) of the Evidence Act, 2011 (formerly sections 149(c) and 150 of the Evidence Act, (1990) in favour of the Appellants that all conditions precedent to the Pre-hearing session had been complied with, otherwise the First Panel would never have commenced and concluded the Pre-hearing session without objection by any of the parties.
He then cited a long line of cases including Ogbunyinya & Ors Okudo & Anor (No.2) (1990) 4 NWLR (Pt 146) 557, National Employees Mutual General Insurance Association Ltd v. Ladin Martins (1969) NWLR, 236; Benson v. Onitiri (1960) FSC 69; Cardoso v. Daniel (1985) 2 NWLR (pt 20); Akpan v. State (2002) FWLR (pt 110) 7845; Ondo State University v. Folayan (1994) 7-8 SCNJ (pt 1) 186 and Nigerian Airforce v. James (2003) FWLR (pt 143) 257; particularly the dictum of Wali JSC in the Ogbuyinya’s (supra) at 576 and submitted that in the face of substantial compliance with steps normally taken when a suit exists, such as filing of pleadings, hearing of interlocutory applications, it is presumed that a writ of summons signed by a judge in compliance with the rules of court exists.
The learned counsel also stressed that the issue of non-filing of the application for issuance of pre-hearing notice is a matter of procedure and the law is now settled that a matter of procedural jurisdiction can be waived while substantive jurisdiction cannot but can be raised at any stage. He then referred us to the dictum of Ayoola, JSC in Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection Agency & Ors (2002) 18 NWLR pt 798 P. 1 at P, 32, Kossen (Nig) Ltd v Savanna Bank (Nig) Ltd (1995) 1 NWLR Pt.420 -439 at 454 -455 Per Ogundare JSC and Belgore JSC (as he then was) in F.G.N. v. Zebra Energy Ltd. (2002) 18 NWLR PT 798 162 at 205; on the distinction between procedural jurisdiction and substantive jurisdiction is highlighted in a number of cases by the Supreme Court.
He then insisted that having acquiesced, the Respondents are barred from turning volte-face to contend otherwise as they cannot blow hot and cold, to approbate and reprobate, because this is a matter of alleged procedural irregularity, which they did not challenge at the earliest opportunity. The Respondents were said to have taken so many steps only, to turn round several months later, to seek to take advantage of the issue of non compliance with procedure, which counsel noted, they cannot legitimately do. In the light of the foregoing authoritative statements by the apex Court, learned counsel was therefore of the view that the tribunal was clearly wrong in upholding the objection of the 1st Respondent who had acquiesced and waived any right of objection, which he may have had as Paragraph 53(1) of the 1st Schedule to the Electoral Act applied fully to the situation.
He was further of the view that the Tribunal did not appreciate the intention of the law makers in enacting Paragraphs 18(1) and (2) of the 1st Schedule to the Electoral Act, 2010 (as amended), in that given the circumstances of the instant petition, it was not abandoned and the Tribunal was elevating technicality above substantive justice. He anchored his submission on the case of Sobamowo v Elerumen (2008) 11 NWLR pt 1097 P.12 at P. 28; and finally submitted that the Tribunal evidently did not bear this fact in mind, when it dismissed the petition as an abandoned one, given the circumstances, otherwise, it would not have dismissed a petition for which the Appellants had filed the necessary application for issuance of pre-hearing Notice and the parties have filed the necessary pre-information sheets and participated fully in the Pre-hearing session to conclusion.
In the light of the foregoing, he urged us to resolve this issue in favour of the Appellants and allow the appeal.
1st RESPONDENT’S ARGUMENTS ON THE TWO ISSUES
FORMULATED FOR DETERMINATION
As was earlier stated, the 1st Respondent formulated two Issues as falling for Determination in this Appeal.
ISSUE NUMBER ONE (1): Whether there were conflicts in the affidavit evidence of the parties not resolvable by reference to the documentary evidence before the Tribunal to warrant the Tribunal to suo motu call for oral evidence.
In their argument on Issue Number One, the learned senior counsel for the 1st Respondent bifurcated the Issues into two basic sub-issues as follows:
i. Did the Tribunal below order for oral evidence to be adduced, suo motu?
ii. Whether there was reason in the first place to order that oral evidence be adduced in the circumstances of this matter?
SUB-ISSUE ONE
Whether the tribunal below order for oral evidence to be adduced suo motu?
On the first sub-issue, the learned senior counsel, pointed out firstly that contrary to the aggressive assertion of the Appellants that the Tribunal called for the oral evidence of the Secretary to the Tribunal suo motu, the Record of Appeal bears out that indeed, the Tribunal below did not call for the oral evidence of the Secretary to the Tribunal below suo motu. References were then made to the Record of proceedings of the Tribunal below of 2nd November, 2011 at pages 553-557, as to what transpired on that day which culminated in the calling of the Secretary after an opportunity was given to G. B. Obi Esq. of Counsel to the Appellants to react to the submissions of the Counsel to the Respondents but he never opposed the contention of the Respondents for the Secretary to the called.
Learned senior counsel, further pointed out that it was after the Tribunal below had heard the parties on their various submissions that it delivered a Ruling in wherein the learned members found that there was need to call the said Secretary and it was consequent upon their findings that there was a conflict in the affidavits that the Tribunal below acceded to the request for the Secretary to the Tribunal to testify orally in the matter. From the foregoing, the learned senior counsel submitted that the Appellants are only whipping up sentiments against the Tribunal below by submitting as they have done that the Tribunal below called for oral evidence suo motu.
In the same vein, it was their submission that the Tribunal below in ordering for the oral testimony of the Secretary to the Tribunal did not violate the provisions of Section 116 of the Evidence Act, 2011; by reason firstly that the point of conflict sought to be resolved by the oral evidence of the said Secretary was very crucial to the determination of the issue before the Court.
He recalled that the issue before the Court was/is whether the Appellants have been able to show, in the absence of any such application in the Tribunal’s record, that they had filed the requisite Application for Issuance of Pre-Hearing Notice.
Again, the learned SAN noted, it was not the Tribunal that chose for the parties whom to call to testify in resolution of the conflict. It was the parties especially the 1st and 2nd Respondents who applied that the Tribunal Secretary be called. He argued that if the Appellants for any reason felt that the testimony of the Secretary alone would not be sufficient to resolve the issue, they were at liberty and had the opportunity of demanding that they be allowed to call any witness under Section 116 of the Evidence Act, 2011 and they ought not to turn around to blame the Tribunal below for their own free choice.
SUB -ISSUE TWO
Whether there was a reason in the first place to order that oral evidence be adduced in the circumstance of this matter?
On this sub-issue the learned senior Advocate x-rayed the history of the case from the time the first panel made the ruling that led to the first appeal and the order by this court after partially allowing the appeal, that Appellants be granted the adjournment to file affidavit evidence to show that they made application for the issuance of pre-hearing forms by letter to the Secretary to the Tribunal. This Court was also said to have directed that the Tribunal shall entertain and determine the issue of whether the Petition was abandoned in the light of whatever affidavit evidence the Appellants placed before it. Learned Counsel for the Respondent recalled that originally, the previous Tribunal had found that there was no application which precipitated an Appeal and the Court of Appeal having directed that the Appellants be allowed an adjournment to enable them bring forward evidence in proof of their assertion that they actually made the requisite application; till date, the Appellants have not shown from the Record of Court, that they filed an Application for prehearing Notice. The learned Counsel opined that the onus of proof rested on the Appellants to show that they made an application more so when the 2nd Appellant is making grave allegation in paragraph 11 of the Further Counter-Affidavit (appearing at page 532 of the Record of Appeal) that the original of their said Application mysteriously disappeared from the Courts file.
The learned SAN then posed the question whether as at the time the Tribunal acceded to the request for oral evidence there was any conflict that necessitated the Tribunal acceding to that request? In other words, had the Appellants provided satisfactory evidence like the Letter of Application to show that they had applied for the issuance of pre-hearing Notice making it unnecessary to proceed with the calling of oral evidence?; the learned Senior Counsel further questioned.
On the reliance placed by the Appellants on the exhibits they annexed to their Further Affidavit, the learned Senior Counsel posited that these exhibits are specimen applications for pre-hearing notice in other matters which contain the signature of the person who received them. The Appellant, he observed; are contending that the signature in the ones they brought forward and the very one in issue (Appellants’ Exhibit A) which they claimed to have been received from the Tribunal’s Secretary after depositing the original; but that Exhibit A of the Appellants does not bear the stamp of Court and does not reflect the name of the officer who purportedly received and endorsed same. He further observed that it does not emanate from the Record of Court and in fact, it was not in the file of the Appellants as at 4th August, 2011 when the Petition was dismissed.
On the contention of the Appellants that the Tribunal below had made a finding that there are similarities between the signature in the document being propounded by the Appellants and the signatures in those other applications showing that it is the same person that received those other Applications that also received the one in dispute; the learned Counsel for the 1st Respondent submitted per contra that the mere fact that there were similarities between the signature of the recipient in the document being propounded (Exhibit A) and the signatures of the recipient in the other documents is not proof or conclusive proof that it is the same person that signed those other applications that also signed the one in dispute; just like dissimilarity in signature in different documents does not mean that the said documents were not signed by one person especially when the owner of the signature in the document being propounded had acknowledged that he was the person that signed the signatures. Ezeonwu v. Onyechi (1996) 3 NWLR (pt 438) 499 at 823 refers.
Conversely, he noted, the mere fact there is similarity in the signature of the recipient of the document being propounded and the signatures in other documents purported to have been made by the same person does not mean that it is one and the same person that signed the documents especially when the alleged maker of the document is contending that he did not sign the document in dispute.
Learned Senior Counsel asserted that by the contentions of the Appellants they seem to be saying that as soon as they have been able to produce other applications which signatures are similar with the one being propounded there is a presumption that the said signatures were signed by one and the same person until the contrary is proved. However, he argued, on the contrary the signatures in the said documents are found to be similar meaning that the signatures look alike but that it would have been a different thing if the Tribunal below had made a finding that the said signatures were signed by one and the same person; in which case, the Appellants would have been half and dry and there would be nothing to be resolved.
He then explained that the point being made here in that as at the time the lower Tribunal acceded to the request of Chief E. E. Egbunonu of Counsel and O. J. Nnadi SAN for oral evidence to be called, the conflicts in the various affidavits of the parties as to whether the Tribunal secretary received and endorsed the receipt of the application for Pre-hearing Notice remained unresolved and as long as it remained unresolved, the party who would lose in the circumstances, were the Appellants who had the onus to show that they applied for issuance of pre-hearing notice.
He further contended that it was in the interest of the Appellants and in the overall interest of justice for the Tribunal Secretary to attend Court and give evidence whether he was the one who received and endorsed the Appellants application for pre-hearing notice and as such all the authorities being relied on by the Appellants to urge us to hold that the Tribunal’s directions for calling oral evidence was improper are inapplicable and ought to be discountenanced.
On the submissions of the Appellants in Paragraphs 4.15-4.27 of the Appellants Brief that some paragraphs of the 2nd Respondent’s Counter-Affidavit and Further-Counter-Affidavit offended the provisions of Evidence Act and cannot be the basis for the Tribunal below to hold that there was conflict in the affidavits and Counter-Affidavits; and that those highlighted paragraphs of Counter-Affidavit and Further Counter-Affidavit are inadmissible; the learned SAN pointed out that these issues being canvassed by the Appellants on the validity of any of the paragraphs of 2nd Respondent’s Counter-Affidavit and/or Further Counter-Affidavit was not canvassed by any of the parties at the Tribunal below neither did the Tribunal make any pronouncement on the validity or otherwise of any of the affidavits.
He took the view that for the Appellants to competently argue this issues on Appeal, they must of necessity obtain the leave of Court and also articulate the complaint in the Appellants’ Notice and Grounds of Appeal and not having sought the necessary leave; we were urged to strike out the argument of the Appellants as contained in Paragraphs 4.16-4.4.27 of the Appellants’ Brief. In the alternative and assuming but without conceding that the said paragraphs are properly before the Court, the learned Senior Counsel canvassed the point that the court did not rely solely on the counter-affidavit and further counter-affidavit of the 2nd Respondent in calling for oral evidence but made a specific finding that the respective counter-affidavits of the Respondents contradict the assertions of the Appellants in their own affidavits.
Furthermore, he urged; the 1st Respondent also filed his own counter-affidavit which was equally before the court the purport of which was that the Appellants did not file the purported letter for issuance of Pre-hearing Notice which the Court referred before coming to the conclusion that there was sharp conflict in the affidavits.
On the submission of the learned Counsel to the Appellants in respect of Paragraphs 11 of the Counter-Affidavit and 5 of the Further Counter-Affidavit of 2nd Respondent’s it was submitted that the said paragraphs do not offend the provisions of the law on affidavits as Paragraph 11 of the Counter-Affidavit is a direct account of what the deponent did and the reaction he got first hand. The said paragraph, he maintained, is a rendition of the deponent’s personal experience upon confronting the Registrar of the Tribunal who denied the signature of the said deponent in reaction to the averments of the Appellants in paragraphs 1, 2, 3, 4 and 5 of the Appellant’s Affidavit of Facts stated that he had confronted the Registrar with the allegation. The learned SAN referred to the Appellants’ paragraph 4 of their Further Affidavit of Facts in reaction to 2nd Respondent’s Counter-Affidavit (appearing at page 538 of the Record of Appeal) wherein they deposed to the fact that:
” That our (Petitioners) application to the secretary of the Tribunal was received and acknowledged by the secretary of the Tribunal who I can identify”; and the 2nd Respondent who on its own deposed to in Paragraph 5 of the Further Counter-Affidavit by the 2nd Respondent (appearing at page 544 A of the Record of Appeal that:
“paragraph 4 of the further affidavit is false in its entirely No Secretary of the Tribunal received and acknowledged the purported application of the petitioner, so I have been informed by the Secretary of the Tribunal and I verily believe him on 31st October, 2011, at about 4pm in the Tribunal Registry”.
The learned Counsel to the 1st Respondent then asserted on this point that from the foregoing, it is clear that the Secretary to the Tribunal referred to in paragraph 5 of the 2nd Respondent’s Further Counter-Affidavit is the same secretary to the Tribunal to whom the Appellants had referred in their Further-Affidavit and that upon a holistic reading of the affidavit before the court, this Honourable Court will easily find that there is no doubt as to whom the 2nd Respondent was referring to in the Further Counter-Affidavit. Accordingly, it was submitted that the authorities of Osian v. Flour Mills of Nigeria Ltd (1968) ALL NLR 432; 434; Josien Holding Ltd v. Lormamead Ltd (1995) 1 NWLR (pt 371 254: 265 and Cedar Stationaries Ltd v. IBWa Ltd. (2000) 15 NWLR (pt 690) 338: 349-350 Paragraphs H-D cited by the Appellants in this respect are inapplicable.
We were then urged to resolve this issue against the Appellant.
ISSUE 2
1st RESPONDENT’S ISSUE 2, Whether the Tribunal below was right in the approach it adopted in this matter in acceding to the guest of the Respondents for oral evidence to be called to resolve the knotty issue of whether the application for issuance of prehearing notice produced from the private coffers of the Appellants was received and endorsed by the Tribunal Secretary and in the ultimate conclusion it reached after receiving evidence of the Tribunal Secretary.
The learned SAN drew our attention to the argument of the learned Counsel for the Appellants on their Issue 2, to the effect that since the Tribunal below found that the signature being propounded is similar to the admitted signature of the tribunal Secretary both, the signature being propounded and the signature admitted were signed by the same person. He the submitted that If the lower Tribunal had been satisfied that signature propounded on one hand and the other signature admitted to be that of the Tribunal Secretary on the other hand made by the Secretary of the Tribunal, the Tribunal had no inhibition whatsoever to come to the conclusion the two signatures were signed by one person.
The point was then stressed that the Tribunal below by merely holding that the signature being propounded is similar to the admitted signature of the Tribunal Secretary was not yet satisfied that the two distinct signatures were signed by one and the same person. In other words, the lower Tribunal still had some doubt as to whether the signature being propounded and the admitted signature were made by the same person and it was in order to clear this doubt that the alleged maker of the two sets of signatures was requested to be brought to Tribunal for the matter to be laid to rest; the learned Senior Counsel further stressed.
In a rehash of his earlier arguments; he posed the question whether a person can make a dummy and pass it off as the signature of another which question if answered in the affirmative, according to him, the decision of the Tribunal, after finding some similarities in signatures presented before it to call for oral evidence cannot be impeached. He recalled as done earlier on that throughout the proceedings in the previous panel and even on appeal, the purported application for issuance of pre-hearing notice was not produced. Learned Counsel noted that Exhibit A now being bandied about by the Appellant, is a photocopy and not in an original form and the Appellants are unnecessarily crying wolf and seem to have forgotten in a hurry that there is no Application for Pre-Hearing Notice allegedly made by the Appellants that was in the Court’s file yet, the Court of Appeal in the interest of Justice still gave the Appellants an opportunity to show that they indeed made the Application.
Being the beneficiary of such magnanimity, he added, it is most unbecoming for the same Appellants to turn round to submit that the Lower Tribunal who wanted to get to the root of the matter had thereby descended into the arena of conflict as contended in paragraph 4.41 of the Appellants’ Brief of Argument.
In respect of the arguments in paragraph 4.42 of the Appellants’ Brief, where they described the evidence of the Secretary as an incredible bare denial; it was the contention of the learned Senior Counsel that the Tribunal Secretary is not a party in the Petition and that the evidence of the Secretary does not become incredible for the reason that he stated that he did not make the signature being propounded. According to him, for the lower Tribunal to jump to a conclusion without more that it was the Secretary of the Tribunal that signed the propounded signature merely because the said signature being propounded is similar to the admitted signature of the Secretary to the Tribunal is to engage in speculation. In support of the above submission, he relied on the case of Nitel Plc. Mayaki (2007) 4 NWLR (Pt.1023) 173 at 176-177.
Still on this point, the learned senior counsel submitted further that the Tribunal below who had the opportunity of seeing the signature being propounded and the ones admitted by the Secretary to the Tribunal was in a vintage position to make up its mind whether the point of similarity between the two signatures is that strong and positive to convince the Court that indeed, the Secretary signed the two sets of documents. He therefore, debunked the claim by the Appellants that the tribunal below determined the application solely on the demeanour of the Secretary; as according to him, the tribunal took other factors into consideration and in the light of the circumstances of the matter and held as it did at page 571 of the Record of Appeal which holding was reproduced at page 13 of the 1st Respondent’s Brief.
Alluding to the holding of the Tribunal above, it was further submitted that if the similarities as between the signature being propounded and the admitted signatures of the Tribunal Secretary, Exhibit B, B1-B3 were that strong and positive, the lower Tribunal would not have come to the conclusion it reached which said conclusion had been reproduced above.
Learned counsel then alluded to the provisions of Section 101(1) of the Evidence Act 2011 which according to him, empowered the Tribunal to compare the disputed signature with the one that is admitted in order to determine whether the two signatures were signed by one and the same person, but never directed that once there are similarities in the two sets of signatures, the Tribunal will search no more and must willy nilly come to a conclusion that the two sets of signatures were signed by one and same person.
He maintained that from the provisions of both the Evidence Act as in Section 101(1) and judicial authorities empowering the Court or Tribunal to compare the disputed signature with the admitted signature and then come to a conclusion; the Tribunal had the opportunity of seeing the two signatures, and employed its own senses when it compared the two distinct signatures before it made the primary finding that the two signatures are similar.
With the Tribunal proceeding to hold that the point of similarities found in the signature were not enough to dislodge or discredit the oral evidence of the Secretary whom the Tribunal below had held to be a disinterested party; he further argued; the matter at hand borders on what the Tribunal saw after which the Tribunal felt there was need to call oral evidence, and as such this Honourable Court cannot substitute its own views with that of the lower Tribunal especially when the conclusion reached by the Tribunal was based on what it saw and on the Tribunal’s own sensibilities.
Turning to Paragraph 4.44 of the Appellants’ Brief, where the Appellants cited the Supreme Court case of Adenle v. Olude (2002) 18 NWLR (Part 799) 413, the learned senior counsel posited that the submission of the Appellants and the decision in the above cited case, remained an option and the Tribunal was acting within lawful authority to insist on being satisfied that it was indeed the Secretary of the Tribunal that signed the document despite the similarity of the propounded signature and the admitted one.
Accordingly, he submitted that the case of Ayanru v. Mandilas Ltd (2007) 10 NWLR (par 1043) 462; Adelaja v. Alade (1999) 6 NWLR (part 608) 544; Ikoku v. Ikoli (1962) 1 SCNLR 307 and Amadi v. Orisakwe & Ors (2005) 7 NWLR (part 924) 385; cited by the Appellants in paragraphs 4.48-4.51 of the Appellants’ Brief of Argument are not applicable to the circumstances of this case, since the Secretary to the Tribunal whose signature is in issue is not a party in the proceedings and does not have any ulterior purpose to serve or any inducement to deny his signature or deny ever receiving the application in question from the 2nd Appellant. Not being a party to the proceedings and not having any interest to serve, the Secretary ought not to be held down to the fact that he did not plead nor lead evidence that the signature in Exhibit A is forged. He urged us again to resolve this Issue in favour of the 1st Respondent.
ISSUE THREE
It is pertinent to note that the 1st Respondent formulated only two Issues but as rather argued three Issues. We shall come to the effect of this curious procedure in the course of resolving the Issues. Suffice it to say, that the learned senior counsel of the 1st Respondent drew our attention that the Appellants appear to be raising the issue of waiver in the entire gamut of their argument under this issue; when that point had been raised by the Appellants in their former appeal. Reference was then made to the Appellants Notice of Appeal dated 22/8/2011 and filed on the same date and Ground Three, Particular seven appearing at page 486 of the Record of Appeal.
The issue of waiver was said to have been canvassed heavily on appeal in Appeal No. CA/E/EPT/22/2011 between the same parties on the premises of which the Appellants urged your Lordships to hold that the Respondents by the steps they had taken in the proceedings had waived the right to apply for the petition to be dismissed as abandoned. He pointed out that the Honourable Court hearing the parties in the appeal still sent the matter back for the Tribunal to make a determination upon evidence to be adduced before the Tribunal as to whether the requisite application was made or not. If the Court had been persuaded by the argument of the Appellants in that Appeal, that the Respondents had waived their right to complain, he added, the Honourable Court would have allowed the appeal on that ground and would not have asked the parties to go back to try the issue of whether or not the said application was filed. On that note, he urged us to strike out the Appellants’ argument on this issue as the Appellants are estopped from raising it once again in this Appeal.
On the merits of the said issue, learned senior counsel canvassed the following arguments:-
1. The decision of the Tribunal below dismissing the Petition as abandoned pursuant to Paragraph 18(4) of the 1st Schedule to the Electoral Act is unassailable;
2. The Tribunal having found as a fact that the Appellants never applied for the issuance of Form TF007, the legal duty on the Tribunal was to mandatorily dismiss the Petition as abandoned.
3. The authorities are rife that a Tribunal or Court cannot commence Pre-hearing Session suo motu without an Application from any of the parties to the Petition. Okereke v. Yar’adu (2008) 12 NWLR (pt.1100) 95 refers.
4. Once it is found that the parties did not apply for Form TF007, the consequence is decisive and singular. The position is described as rather harsh but the law must take its course. The penalty for non adherence to the provisions of Paragraph 18(1) and (3) of the 1st Schedule is as clearly stipulated in paragraph 18(4) of the 1st Schedule to the Electoral Act thus:
“Where the Petitioner and the Respondent fail to bring an Application under this paragraph, the Tribunal or Court shall dismiss the Petition as abandoned petition ….”
To buttress the above submissions, learned counsel cited Okereke v. Yar’adua (supra) at page 118, where the Supreme Court had occasion to pronounce on the provisions of paragraph 3(4) of the Tribunal and Courts Practice Directions, 2007 (impari materia with the extant paragraph 18(a) of the 1st Schedule to the Electoral Act, 2010 (as amended) which dictum was reproduced at page 17 of the 1st Respondent’s Brief.
From the foregoing, it was submitted that paragraph 18(1) of the 1st Schedule to the Electoral Act is a Rule of Court stipulating the condition precedent for a Tribunal or Court to proceed to entertain any election petition or matters relation thereto. According to learned counsel, it is a jurisdictional matter without which the court cannot entertain the petition. Therefore the Appellants’ contention that it is a mere procedural defect is not tenable. Okereke v. Yar’dua (supra) at 120-121 refers.
Learned counsel alluded to recent cases which have tended to relax the position of the law on application for pre-trial notice to accommodate cases where the application was made pre-maturely or was made by the wrong mode. However, he noted, the courts have not hesitated to dismiss a Petition where it is found that there was no application at all for issuance of pre-hearing notice, as was done in the recent decision of this Honourable Court in Appeal No. CA/E/EPT/40/2011 Uzama Okpaleke & Anor v. Forte Dike & Ors. delivered on 5/12/2011 (unreported) wherein this Honourable Court having found that there was no application for issuance of pre-hearing dismissed the petition as abandoned.
On the Appellants’ contention that the Respondents had taken steps and that the failure to apply in the circumstances had been waived, it was submitted that the principle of waiver cannot apply where the law itself removes the exercise of jurisdiction from the Court of Tribunal. References were made in this respect to the decisions of this division of the Court of Appeal in Enwezor v. INEC (2009) 8 NWLR (pt.1143) 223. See also Solomon Anusike v. INEC CA/E/EPT/38/2008 delivered on 2/6/2011 (unreported); to submit that parties cannot by their conduct confer jurisdiction on the Court where it had none.
He reiterated that in Enwezor v. INEC (supra) and Solomon Anusike v. INEC (supra), the Court of Appeal struck out pre-trial information Sheets filed by the respective parties upon finding that the application for issuance of pre-trial notice was filed out of time; while in Uzama Okpalaeke v. Forte Dike (Supra), the Petitioner had earlier closed his case and the Respondents commenced defence before it was subsequently discovered that there was no application for issuance of pre-hearing notice.
On the authority of Ogbunyinya & Ors v. Okudo & Anor and all other cases in that caste referred to by Appellants, it was submitted that they are not appropriate and/or relevant in determining this Appeal; the law relevant herein having been enunciated in Okereke v. Yar’adua (supra) which he urged us to so hold.
On the whole, we were urged to also resolve this Issue 3 against the Appellants, affirm the Ruling of the lower Tribunal and dismiss the Appeal.
2nd RESPONDENT’S BRIEF OF ARGUMENT
ISSUES FOR DETERMINATION
The 2nd Respondent as had been stated formulated three Issues which we had earlier reproduced.
ISSUE NO. 1
Whether the Tribunal was right to call oral evidence to resolve the conflict in the affidavit of the parties as to whether or not the Secretary of the Tribunal received exhibit ‘A’ of the Appellants. (Ground 3).
In arguing the first Issue, learned senior counsel for the 2nd Respondent answered the questions posed by the Issue in the affirmative, maintaining that the tribunal was right in inviting the Secretary of the tribunal to resolve the conflict. He pointed out that the Appellants neither raised any objection to the use of the Affidavit of the Respondents in the Tribunal below nor did they urge the Tribunal below to discountenance the affidavit of the 2nd Respondent or any of the Respondents for breach of any of the provisions of the Evidence Act as now argued by the Appellants.
The Appellants, he argued cannot do so because this is a Court of Appeal, which duty is to re-hear a matter decided by the court or Tribunal below. Moreover, there is no decision of the Tribunal below on offensive paragraphs of an affidavit and no ground of Appeal had been raised by the Appellants on the decision of the tribunal below based on the argument raised and considered by the Tribunal on the competence of the counter affidavits of the Respondents. He took the view that affidavit is evidence, and like all evidence where it is admissible upon certain grounds but where no objection was taken as to its admissibility for non-fulfilment of certain conditions, the argument cannot be taken at the court of Appeal.
Placing reliance on the cases Ekpe v. Etim (1983) 1 SCNLR (pt. 952) 476, Awuse v. Odili (2005) 16 NWLR (pt.952) 416; Falae v. Obasanjo (1999) 4 NWLR (Pt. 599) page 435; A. G. Fed. V. Bayawo (2000) 7 NWLR (Pt 665) 351 at 359 and Section 113 of the Evidence Act LFN 2011; it was further submitted that the Appellants did not raise the Issue of offensive affidavit in the court below and cannot raise same in this court without leave of the court and that, same being a fresh issue not decided by the Tribunal below and the Tribunal below was not invited to decide same. Again, by virtue of section of the Evidence Act earlier cited a defective affidavit may be allowed to be used notwithstanding the defect.
He maintained that had the Appellants objected to the use of the counter affidavit and or addressed the Tribunal below on same, the Respondents would have replied and the Tribunal would have given a decision disallowing the evidence or allowing same or even if found defective allowed same on the authority of Falae v. Obasanjo (surpa). It was there after, he noted, that any of the parties dissatisfied with the Ruling of the Tribunal on defective affidavit can appeal against same.
On the contention of the Appellants that paragraphs 11 and 5 of the counter affidavit and further counter affidavit of the 2nd Respondent was/is defective, the learned senior counsel for the 2nd Respondent reproduced the contents of those paragraphs of the counter affidavit which read:
“11. The I have in the course of my duties above stated confronted the Registrar of the Tribunal and nobody accepted that he or she owned the signature nor indicated that the signature belongs to any Registrar of the Tribunal”; and
“5. Paragraph 4 of the further affidavit is false in its entirely. No Secretary of the Tribunal received and acknowledged the purported application of the petitioner, so I have been informed by the Secretary of Tribunal and I verily believe him on 31st October, 2011 at about 4pm in the Tribunal Registry.”
Learned counsel also juxtaposed the above averments with the averments of the Appellants in paragraphs 2 and 3 of their affidavit in support and paragraph 4 of the further affidavit of the Appellants, submitting that there is no doubt as to whether the Secretary to the Tribunal was known to the parties and court and so the source of information of the 2nd Respondent was not in doubt. More so, when the Secretary of the Tribunal was called to testify, the Appellants did not raise any objection that the Secretary that testified was not the Secretary of the Tribunal or was not the Secretary mentioned in the further counter Affidavit of the 2nd Respondent.
Also, learned counsel argued further that when the Secretary of the Tribunal mounted the witness box he was not asked under cross examination, that he was not the person that informed the 2nd Respondent that he did not receive Exhibit ‘A’ Rather the evidence of the Secretary supports the deposition in paragraph 5 of the 2nd Respondent’s further Counter affidavit that the Secretary of the Tribunal did not receive Exhibit ‘A’ of the Appellants.
He maintained that the duty to determine whether an affidavit and Counter affidavit are in conflict is at discretion of the Judge or court, and that in matters of exercise of discretion; no two courts are alike. Thus, he urged, this court cannot question the exercise of discretion by the Tribunal to call for oral evidence in view of the obvious conflict simply because the Court would have exercised the discretion the other way. The case of Odusote v. Odusote (1971) ALL NLR page 221, at 224 was cited to further submit on this point that the tribunal rightly exercised the discretion to call oral evidence by calling on the Secretary of the Tribunal who was alleged to have received the said Exhibit ‘A’ of the Appellants to acknowledge or deny receipt of the said Exhibit”.
The learned senior counsel went on to submit that it is the law that when a fact is asserted by an applicant or plaintiff and denied by the Respondent or defendant, parties are said to be at issue in respect of the fact asserted and denied. As far as this case is concerned, it was the view of the learned senior counsel that the issue before the Tribunal was whether or not Exhibit ‘A’ received and acknowledged by the Secretary of the Tribunal as asserted by the Appellants and denied by the Respondents. Submitting that it is the person said to have received Exhibit ‘A’ and acknowledged same that would resolve the conflict, he cited Okoye v. Lagos State Govt. (1990) 3 NWLR (pt. 136) 115 at 123 -124; Falobi v. Falobi (1976) 9 and 10 SC 1 at 5; Akinsete v. Akintudire (1966) 1 ALL NLR 147 and Ojimba v. Ojimba (1996) 4 NWLR (Pt 440) 32, where the courts held variously that it is the duty of the court to take oral evidence to resolve such conflict as to whether or not the Secretary of the Tribunal received and acknowledged Exhibit ‘A’; and that where the only reasonable way of resolving the conflict is by oral evidence, failure to call oral evidence to reconcile the conflict affidavit, is not proper exercise of discretion and such judgment or ruling will be set aside.
On the contention by the Appellants that the trial Tribunal ought to have relied on Exhibit ‘A’ in the light to Exhibit B, B2 and B2 attached to the further affidavit, learned senior counsel posited that such a contention is misconceived as Exhibits B, B2 and B3 are certified true copies of letter of application for pre-hearing notice found in the Tribunal’s file and certified there from. The said Exhibits B, B2 and B3, he further posited, are not in doubt as no issue arose as to whether they were received and acknowledged by the Tribunal Secretary and accordingly, the said Exhibits enjoy the presumption of regularity arising from Certified True Copy of public documents.
On the other hand, he maintained, the above Exhibits cannot be equated with Exhibit ‘A’ in issue which is neither a Certified True Copy nor did it emanate from the Registry of the Tribunal but had been denied and confirmed as having not been received by the Secretary of the Tribunal. To buttress this submission, learned senior counsel relied on the dictum of Edozie J.S.C in Araka v. Egbue (2003) 17 NWLR (pt 848); where the Supreme Court then held that held that it is only Certified true copy and nothing more of secondary evidence of a public document that is the admissible; to further assert that the Appellants have not adverted their minds to the fact that Exhibit ‘A’ being a document purportedly filed in court or to be located in the file of the tribunal; only Certified true copy or the original in the file of the court it sufficient for the tribunal not to call oral evidence.
The learned Senior Counsel went on to cite the cases of Elkhali v. Oredu (1985) NWLR (pt. …) 373, where it was held that it is only the original or certified true copy of affidavit/counsel affidavit that is used in the court; N.I.D.B. v. Fembo Nig. Ltd 2 NWR (pt 489) 543 at 570 on his contention that Exhibit ‘A’ of the Appellants cannot be relied upon without calling oral evidence as canvassed by the Appellants; Ezemba v. Ibeneme (2004) 14 NWLR (pt 894) page 617 at 600, Nwankpu v. Ewulu (1995) 7 NWLR (pt.40) 269; on his submission that under the best evidence rule as further provided in section 126 of the Evidence Act and supported by cases, the Secretary who was said to have received and acknowledged Exhibit A, is the best person to call in order to resolve the issue; Geco-Prakla (NIG) Ltd. v. Ukiri (2004) 1 NWLR (Pt.855) 601 and Ethiopia Airlines v. Onu (2005) 11 NWLR (pt 936) 214 at 238; on the submission that the situation herein is akin to calling a bailiff where there is dispute as to service or proof of service instead of relying on the affidavit of service.
Relying again on the case of S.P.D.C.N v. Amadi (2010) 13 NWLR (pt.1210) 82 at 742 paras, C-D; it was submitted that it was a misconception for the Appellants to say that there was no substantial or material conflict upon the state of affidavit of the parties by relying on Essien v. Inyang (2011) LPEAP CA/C/103/2008, which facts are totally different from the facts and state of affidavit of the parties in this appeal with respect to Exhibit ‘A’ annexed to the affidavit of the Appellants.
Learned Counsel went on to contend that there is no appeal by the Appellants against the decision of the tribunal to resolve the conflict by calling evidence, as their only contention is that the tribunal suo motu called the Secretary of the Tribunal and that the Appellants’ further contention that the tribunal suo motu called the Secretary of the Tribunal holds no water, for the following reasons;
(i) The Appellants referred to the Secretary of the Tribunal as the person that received and acknowledged Exhibit ‘A’.
(ii) When the Secretary of the Tribunal was summoned to give evidence, the Appellants were given opportunity to cross-examine the Secretary when the secretary gave evidence to the effect that he did not receive Exhibit ‘A’ from the Appellants nor acknowledged Exhibit ‘A’ for the Appellants.
(iii) The Appellants not only cross examined the Secretary of the Tribunal but was also allowed to address the tribunal after the cross examination of the Secretary. See pages 557 to 559 of the Appeal.
(iv) Would the Appellants have complained if the Secretary of the tribunal gave evidence in support of their averment that the (the Secretary) received that application (exhibit ‘A’ and acknowledged same for the Appellants.
Furthermore, the submission by the Appellants that the 2nd Appellant’s averment in his affidavit that he personally delivered Exhibit ‘A’ to the Secretary of the tribunal who acknowledged same in his present was not challenged in any of the Counter Affidavit of the Respondents; is false in the extreme; he added. From the foregoing, the learned SAN argued that there was irreconcilable conflict in the affidavit which required that oral evidence of the Secretary to be called to see if he received and acknowledged Exhibit ‘A’ for the Appellants and the Tribunal was right in calling oral evidence. Accordingly, he restated that they have hereinbefore demonstrated that the argument on offensive affidavit raised by the Appellants at paragraphs 4:19, 4:29 of the Appellants’ Brief of Argument cannot be raised because the issue was not raised in the Court below. He then recalled what transpired in Court in the Tribunal while G. B. Obi moved the Application on the on 21/11/2011, submitting that the Appellants’ counsel at pages 553 to 554 of the Record did not attack the counter – affidavit as offensive, what happened as record by the Court at pages 553 to 554 was reproduced; to submit that the appellants did not challenge the competence of the counter affidavit and further counter affidavit of the 2nd Respondent and they cannot do so now in this court.
ISSUE NO.2 Whether the tribunal was right in holding that the Appellants did not apply for pre-hearing Notice on the evidence the tribunal (Ground 2)?
On this Issue the learned Senior Counsel answered the question posed in the Issue in the affirmative submitting that the tribunal was right in holding and believing the Secretary of the Tribunal that the he did not receive Exhibit ‘A’ and if the Secretary of the Tribunal did not received Exhibit ‘A’ and did not acknowledge same for the Appellants, then the question of the signature being on Exhibit ‘A’ being that of the Secretary does not arise.
Furthermore, he reiterated, Exhibit ‘A’ not having emanated from the Tribunal cannot be given that level of credence sought by the Appellants and accordingly; the authorities of Adelaja v. Alade (1999) 6 NWLR (pt. 608) 544; Ikodu v. Ikoli (1962) 1 SCNLR 307; Amadi v. Orisakwe (2005) 7 NWLR (pt.924) 385; Ayanru v. Mandilas Ltd. (2007) 10 NWLR (pt. 1043) 462 at 481 paras A-E and Adenle v. Olude (2002) 18 NWLR (pt. 799) 134 cited by the Appellants were cited out of con on the issue the Tribunal was faced with.
He further rehashed the submissions of the learned Counsel for the 1st Respondent on the disinterestedness of the Secretary of the tribunal and a party to the petition on the success or failure of the petition; the similarity or dissimilarity of signature of the signatures in question and the assertion that the Appellants had ample opportunity to have invoked the provision of section 101 of the Evidence Act LFN 2011 and sought leave of the Court for the Secretary to sign his signature before the Tribunal.
The learned SAN further submitted still on this score that Exhibit ‘A’ is at best a closed signature, the 2nd Respondents having deposed to the fact in the further affidavit of 1/11/2011 and prayed the Appellants to produce the original copy of Exhibit ‘A’ but same was not produced or used to confronted the Secretary in the witness box. Again, it was contended that the Appellants refused to confront the Secretary with the original duplicate copy they purportedly kept in their custody.
Referring to the case of Okambah Ltd. v. Sule (1990) 11 SCNJ 1 at 9 where the Courts variously held that:
“Evidence of posting is no evidence of receipt. These are issues which require to be tried and cannot be resolved by affidavit”; Mohammed v. Mustpha (1993) 5 NWLR (Pt. 292) 22 “The question whether a process, writ or notice is served or nor is a question of fact of which oral evidence can be given”; he maintained that in all the cases cited by the Appellants on signature decided under the old Evidence Act in section 61(1) and (2) 108 (1) and (2) as in the cases of Amadi v. Orisakwe (supra); Adenle v. Olude (supra); Ayanru v. Mandilas Ltd. (supra), it was held that:
“The court has power to make comparism between the admitted signature of a person and the disputed signature. The court is entitled to examine all disputed writings and form its own opinion on that point. There is no provision that before the court can invoke that power parties must first address the court.”
The tribunal he posited, having by itself compared the signatures in the Exhibits A, B, B2 and B3 and came to the conclusion that the Secretary did not received nor acknowledge receipt of Exhibit ‘A’; the finding of fact clearly implies that Tribunal did not believe that Exhibit ‘A’ was truly signed by the Secretary of the Tribunal, hence the decision of the tribunal to believe the evidence of the Secretary of the Tribunal that the Secretary did not receive and acknowledge Exhibit ‘A’.
Accordingly, he rounded up his argument on this Issue with view that the Appellant totally misunderstood the import of the Ruling of the Tribunal, because by believing the evidence of the Secretary that the Secretary did not receive and acknowledge Exhibit ‘A’ and the so-called similarity of the signature in Exhibit ‘A’ with B, B2 and B3 was not believed to be the signature of the secretary in Exhibit ‘A’.
ISSUE No. 3 Whether the Tribunal was right in dismissing the petition have found as ordered by this court, that no application for pre-hearing Notice was made and received by the Secretary of the Tribunal on 24/6/2011 or at any other date, (Ground 1).
Here, the learned Senior Counsel started by answering the question above posed in the affirmative for according to him, by the admission of the Appellants, the Respondents and the court that there is not application for pre-hearing Notice in the court file; this pre-facie means that no such application was made and that the only means of proof of same legally recognised in law of the content of a public document is by production of certified true copy otherwise no other type of secondary evidence is admissible. Araka v. Egbue (Supra), Alamieyesigba v. F.R.N (2006) 16 NWLR (pt.1004) page 1 at 69-70; Sections 104 and 90(1) C of the Evidence Act LFN 2011; were relied upon to submit that the Appellants have no admissible secondary evidence as expected of a public document to use to show that the Appellants applied for pre-hearing Notice and that Exhibit ‘A’ attached to the affidavit of the Appellants is not an admissible legal evidence of a public document to be used in court to show that that Exhibit ‘A’ was filed in court.
Accordingly, the learned senior counsel placing reliance on the unreported decision of this court in CA/E/EPT/40/2011: APGA & Anor. v. Fort Ifeanyi Dike & 4 Ors; Nwankwo v. Yar’Adua (2011) 13 NWLR (pt. 1263) at 81 and 128 per Nwodo, and Garba, JJCA; submitted that Exhibit ‘A’ which has been not been shown to have been received and acknowledged by the Secretary, simply means, that there was no such application for pre-hearing Notice and as such the petition is in the circumstances an abandoned.
Furthermore, the position of the present Appeal is even worse, since according to him, neither was a specific finding by the previous panel in the Tribunal that no such application was made, and upon this Court allowing the appeal to enable the Appellants prove that they made the application; the tribunal (this time another panel) found that no such application was made and dismissed the appeal. He therefore maintained that the Tribunal was right in treating the petition as an abandoned petition pursuant to paragraph 18(1) and 18(4) of the First Schedule to the Electoral Act 2010 (as amended); since it is the law that once a panel is constituted or reconstituted pre-hearing session must be conducted and that once an appeal is allowed and the matter comes before the lower Court, pre-hearing session must be conducted. Insisting that there is no record from the file of the Tribunal or Proceedings of the Tribunal or record of appeal that the Petitioners/Appellant herein applied for issuance of pre-hearing notice; he relied on the authorities of Fumudoh v. Aboro (1991) 9 NWLR (pt. 214) 210 Oshurinde v. Akande (1996) 6 NWLR (pt.455) 383 SC; to submit that Courts or Tribunals are bound by the record of the court.
On the issue of jurisdiction as earlier canvassed by the 1st Respondent, the learned senior counsel for the 2nd Respondent further relied on the cases of Galadima v. Tambai (2000) 11 NWLR (pt 677) 1 at 15; Umanah v. Attah (2006) 17 NWLR (pt 1009) 503 at 523 paras, E-F; per Tobi, JSC and FRN v. Ifeagwu (2003) 15 NWLR (pt 842) SC 113 at 212 paras E-G; per Tobi, JSC; to submit that the issue of jurisdiction could be raised at my time in any manner including orally or suo motu by the Court and once raised must be inquired into before any other step. Thus, he continued the absence of jurisdiction cannot be defeated by the so called issue estoppels relied upon by the Appellants as to the filing of form TF008 is mandatory on the Appellant.
Still on the mandatory nature of Paragraph (18)(1)(2)(3) and (4) of the First Schedule to the Electoral Act 2010; he recalled the dictum of this court in Nwankwo v. Yar’Adua (2010) 12 NWLR (pt.1209) 518 SC at 565 to the effect that where a statue lays down a procedure for doing a thing there should be no other method of doing it; and also the cases of CCB Plc v. AG Anambra State (1992) 10 SCNJ 37; Buhari v. Yusuf (2003) 14 NWLR (pt 841) 446 at 492; Adesola v. Abidoye (1999) 4 NWLR (pt.637) 28 and the dictum of I.T. Muhammad JSC, in Okereke v. Yar’Adua (supra) at pages 117-178 paras B-G; on the effect or consequence of breach of any provision of paragraph 18 of the First Schedule to the Electoral Act 2010 (as amended) which according to him is fatal and its effect harsh as the court is slavish in the strict adherence to all the steps of the provisions therein.
Reacting to the cases of Mobil Producing Nigerian Unlimited v. Lagos State Environmental Protection Agency & 2 Ors. (2002) 18 NWLR (pt.798) 1 at 32; Kossen (Nig.) Ltd. w Savannah Bank (Nig.) Ltd. (1995) (pt 420) 439 at 454, 459; Ogbunyiya v. Okudo (supra); FGN v. Zebra Energy Ltd (2002) 18 NWLR (pt 798) 162; cited by the Appellant, he submitted on the authorities of Onitiri v, Benson (1960) SCNLR 314 at 317; (1960-1980) LRECN 44; Oyekan v. Akinjide (1965) NMLR 381at 383; (1960-7980) LRECN 105; Mohammed v. Abdulazi (2008) 3 LRECN page 149 at 170-171; Obih v. Mbaekwe 200 per Bello JSC, at 211 per Eso JSC and Aniagolu JSC; and Okereke v. Yar’Adua (supra) Nwankwo v. Yar’Adua (2010) 12 NWLR (pt. 1209) 578 at 565; that they have nothing to do with election petition nor the interpretation placed on paragraphs 18(1) (2) (3) and (4) of the First Schedule to the Electoral Act 2010 (as amended) and consequences therein for non compliance.
He concluded on the authorities in ordinary civil matters as cited by the Appellants by stating that election petition is sui generis and that the jurisdiction of an election tribunal to deal with election petitions is of a very special nature different from that in ordinary civil cases. Moreover, the proceedings are special for which special provisions are made under the constitution; Election petition are distinct from ordinary civil proceedings and it is such that in certain circumstances the slightest default in complying with procedural steps which otherwise could either be cured or waived in ordinary civil proceedings could result in fatal consequences to ordinary civil proceedings could result in fatal consequences to the petition. From the foregoing, he maintained that with the decisions of Okereke v. Yar’Adua (supra) SC, Nwankwo v. Yar’Adua (supra) CA, it is clear that non-compliance with Paragraph 18(1)-(5) of the First Schedule is fatal and Paragraph 53(1) thereof would not therefore apply to remedy the non-compliance with a condition precedent to the pre-hearing report. Accordingly, he was of the view the Tribunal was right therefore when it held that paragraph 53(1) of the First Schedule to the Electoral Act does not apply.
Reacting to the submission of the Appellants that the Respondent having partaken in the Pre-hearing exercise to conclusion they waived their rights and were accordingly estopped from raising the issue of non-compliance, the learned senior counsel contended per contra that it is settled law that no consent or waiver by parties can confer jurisdiction on a court where none existed. Ijebu-ode LG v. Adedeji Balogun & Co. (1991) NSCC Vol. 22 part 1 page 1 ratio 3 and page 14 tines 18 to 22 and lines 24 to 27; Umanah v. Attah (supra) and Madukolu v. Nkemdilim (supra); were cited to contend further that since the Supreme Court has held in Okereke v. Yar ‘Adua (supra), that every of the steps must be complied with, the Appellants cannot complain about waiver, as in any case’ parties cannot contract out of statues in an election petition, so as to allow a party who has woefully showed unpreparedness to commence, continue and conclude with the pre-hearing by failure to apply for issuance of pre-hearing notice, to turn around to plead waiver.
He insisted that, the Appellants did not commence pre-hearing session at all by an application whether by letter or by motion and the time for such an application had lapsed by more than 7 days therefore; the petition filed by the Appellants is deemed as abandoned and relying again on the dicta of Ogundare (of Blessed Memory) and Mohammed JJSC in Menakaya v. Menakaya (2001) 16 NWLR (pt 738) 203 at 252 paras E-F; it was submitted that the contention of waiver cannot therefore be correct because the phrase shall apply as used is a mandatory statutory provision; the failure to apply for pre-hearing Notice thereof which is fatal to the petition. He distinguished the authority of CA/YL/EPT/ADS/HA/2/2011 Isa and Anor. V. Tahir and Anor. (unreported) judgment of the court delivered on 6/10/2011 from the present case is because in the said case, there was an application for pre-hearing session via a letter and counsel for the Respondents had argued that an application for pre-hearing notice via a letter is incompetent.
Relying again on the dictum of Uwaifo JSC in Menakaya v. Menakaya (2011) 16 NWLR (pt.738) 203 SC at 263; and further distinguishing Ogubuanyinya v. Okudo (1990) 4 NWLR (pt 146) 557 at 576; he further emphasized the mandatory and obligatory nature of paragraph 18(1) which is that pre-hearing session shall be commenced by an application and that without the letter or compliance which will render all acts and steps taken in the previous panel is a nullity and cannot be used to visit the Respondents with waiver.
Learned counsel still on waiver, pointed out that the presumption in Ogbuanyinya v. Okudo (supra) arose 22 (twenty two) years after the institution of the suit and with interference of the civil war in Nigeria the suit which was filed in 1958 travelled to Supreme Court in 1979 before it began de novo in the High Court. The Petition resulting in this Appeal on the other hand he noted; was filed on 27th May, 2011 and up till now there is no evidence of such a letter and accordingly, the case of Ogbuanyinya v. Okudo (supra) was cited out of con. He in conclusion urged us to dismiss the appeal as lacking in merit.
4TH RESPONDENT’S BRIEF OF ARGUMENT.
ISSUES FOR DETERMINATION.
The 4th Respondent as we had earlier observed adopted the issues for determination as formulated by the Appellant but sought leave of the Court to argue the 3 issues for determination jointly as they are related.
Arguing the three Issues as prayed, the learned counsel for the 4th Respondent submitted that the law is settled that in cases where affidavits on material facts to be adjudicated upon are diametrically at variance, the Court before which the proceeding is being conducted must not pick and choose or believe one and reject the other but that it is only by resorting to viva voce evidence that the Court will resolve the conflicts on the facts. Garba v. University of Maiduguri (1996) 1 NWLR (pt 18) 550, Falobi v Falobi (1976) 9-10 SC 1 refers.
Learned counsel posited that the conflicts in affidavit evidence on the fundamental issue to the matter in controversy has to be attended to and not just glossed over as a Court of law is not a magician to know all that happened only on affidavit evidence. FSB International Bank Ltd. v. Imano Nigeria Ltd. & Ors. (2000) 11 NWLR (pt 679), 620 at 635 refers.
Accordingly, he submitted that the tribunal was right to have called further Oral Evidence by testimony of witnesses that ought to have known what transpired in the application made to the Secretary of the Tribunal. Referring to paragraph 18(1) of the First Schedule to the Electoral Act provides as follows:
“Within 7 days after the filling and service of the Petitioner’s reply on the Respondent or 7 days after the filling and service of the respondent’s reply, whichever is the case, the Petitioner shall apply for the issuances of pre-hearing notice as in Form TF 007”; he contended the consequences and effect of failure to comply with paragraph 18(1) of the First Schedule to the Act is provided in paragraph 18 (4) and in this case the petition became abandoned and it was liable to the consequence receipt or non receipt by the Secretary and other surrounding issues to resolve the conflict in the affidavit of both parties.
In line with the submissions of the learned senior counsel for the 1st and 2nd Respondents, learned counsel also contended that the material point is the application for issuance of pre-trial form and the receipt thereof. He maintained that since the Petitioner said he applied and the Secretary said no; oral evidence needed to be called to resolve these conflicts that could not be resolved by affidavit evidence.
In conclusion he also urged us to dismiss the appeal for the following reasons:
1. There was conflict in affidavit evidence that needed calling Oral Evidence to resolve same.
2. The petition was abandoned as a result of non fulfilment of the conditions in paragraph 18(1) of the First Schedule to the Electoral Act.
RESOLUTION OF ISSUES.
In the determination of this Appeal I intend to adopt the three Issues formulated by the Appellants and in so doing I must not fail to note that the learned counsel for the Appellants and 1st and 2nd Respondents have bloated this case beyond proportion by their bogus, serpentine and circumlocutory Briefs. I say this without any reservations because upon a perusal of the Records this is a Petition which ought not to have attracted as much furore as has been done in the Briefs of the Respective counsel.
ISSUE NUMBER 1 OF THE APPELLANTS
Turning to the first Issue as to whether there were conflicts in the affidavit evidence of the parties not resolvable by reference to the documentary evidence before the Tribunal to warrant the tribunal to suo-motu call for oral evidence (Ground 3); it has to be recalled that this Appeal arose from the contentions of the parties as to whether the Appellants filed their application for Pre-hearing Notice (Form TF007) as envisaged by Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended). Whereas the Appellants asserted that they did file application by way of a letter to the Secretary of the Tribunal on the 24th June, 2011, the Respondents asserted the contrary. This scenario arose when the First Panel of the Election Tribunal on the 12th of July, 2011, closed pleadings and commenced pre-hearing on that day after the 3rd and 4th Respondents had filed and served their respective Replies on the Petitioners and as can also be gleaned from the Record of proceedings parties had also duly exchanged their respective Pre-Hearing Information Sheets Forms TF008 as at the 15th of July, 2011. See pages 433-436 and 446 of the Records respectively. On the 4th day of August, 2011, when hearing resumed, learned counsel for the Petitioners G. O. Obi Esq., informed the Court that there were no pending applications on the matter and pre-hearing should be closing. The Tribunal then remarked thus:
“We do observe that this matter would seem to have been set down for hearing suo motu by this Tribunal on 12/07/11 upon being told that pleadings had been completed in the matter on the same date by the service of the 3rd and 4th Respondents’ Reply on the Petitioner on 12/7/11.
It is observed that there was no subsequent application by the Petitioners for issuance of Pre-hearing Notice. In the light of the Supreme Court decision in Okereke v. Yar’Adua & Ors. (2008) 12 NWLR (pt.1100) 95 at 120-121, we would like the Petitioners’ counsel to address us whether the pre-hearing could properly have been constituted without an application and whether the Tribunal does not lack jurisdiction to continue in this matter.”
The Tribunal having made this observation, learned counsel for the Appellants thereafter asked for a stand down for 2:00 P.M that day and when hearing resumed at 2.10 PM, the learned counsel addressed the court stating thus: “When this issue was raised by the Tribunal, convinced, that the Petitioner did make the application I applied for the matter to be stood down with the intention of going through the Record of the Tribunal to confirm that we did file the said application. Upon going through the Tribunal’s Record, I discovered that the said application, which I am convinced, was filed by the Petitioners was not in the Tribunals file. Whether or not the Petitioner did make this application is an issue of fact and in view of the absence of the application, which we are convinced that we made to the Tribunal’s file, I am constrained to make an application for an adjournment to adduce evidence by way of affidavit to show that we did make the said application by a letter to the Secretary of the Tribunal. So our application is for an adjournment to enable us show and challenge the Record of this Tribunal.” See page 465 to 467 of the Records.
As if there was a grand conspiracy between the Tribunal and Mr. A. Obi Okafor Esq., the learned Senior Counsel for the 1st Respondent surprisingly opposed the application for adjournment on the spurious ground that the learned counsel for the Appellants did not furnish the Tribunal with sufficient material for the matter to be adjourned as according to him, the learned counsel for the Appellants had confirmed that the application for issuance for pre-hearing which he ought to have made to the Tribunal was not in the Tribunal’s file.
Furthermore, the learned senior counsel insinuated that the Petitioners had not shown their copy of the application which would have formed the basis of the adjournment sought and that they (parties) should be addressing the Court on the consequences of not filing the Form TF007. He then urged the Tribunal to treat the Petition as abandoned and dismiss same accordingly.
O. J. Nnadi, SAN on behalf of the 2nd Respondent, argued in the same vein in opposing the application for adjournment as sought by the learned counsel for the Appellants and called on the Tribunal to listen to their (Respondents) addresses on the issue, since according to him the Appellants refused to address but rather sought for an adjournment. With this submission of the two learned Senior counsel for the Respondents, the learned counsel for the Appellants prayed that in the event of the Tribunal’s refusal of their application for an adjournment, he reiterated that they never admitted not making the application and “The fact that this application was made is supported by the order of this Tribunal made on 12/07/11 for the parties to file their Pre-trial Forms TF008, it was further supported by the fact that all the Respondents should file their Forms TF008 in the petition. It. is our respectful contention that the Respondents would have raised the issue that no application, if they had not been satisfied that the application was made.”See pages 448 to 449 of the Records.
Inspite of these revelations, the Tribunal went on to rule dismissing the Appellants’ Petition pursuant to paragraph 18(4) of the First Schedule to the Electoral Act, 2010 and the authorities of Okereke v. Yar’Adua (2008) 12 NWLR (pt.1100) 95 at 118; Okereafia & Anor. v. Hon. Agwu & Anor, (2008) 12 NWLR (pt.1100) 165 at 185; Obuzor v. Oke & Ors. (2009) 2 NWLR (pt.1125) 388 at 422 and Kennedy v. INEC & Ors. (2009) 1 NWLR (pt 1123) 614 at 638; on the ground of abandonment and want of jurisdiction.
Upon appeal to this Court, our learned brothers had no hesitation in allowing the appeal in part and directed the Tribunal to entertain the issue it had raised suo motu in the light of whatever evidence the Appellants would have placed before it and come to a decision on the issue. It is also pertinent to note that the Appellants were granted adjournment to file affidavit evidence to show that they made application for issuance of Pre-hearing Notice.
Following this decision, the Appellants filed their Affidavit of Facts dated 20th of October, 2011 same date to which they annexed a letter marked Exhibit ‘A’ from the Chambers of O.A. Obianwu Esq., SAN, dated 22nd June, 2011 and addressed to the Secretary, National and State Assembly and Election Tribunal Awka, which letter is captioned “APPLICATION FOR ISSUANCE OF HEARING NOTICE IN FORM TF007 IN PETITION NO. EPT/AN/NAE/HR/33/2011. ALL PROGRESSIVES GRAND ALLIANCE & ANOR. V. CHRISCATO AMEKE & ORS The letter reads “We hereby apply for the issuance of Pre-hearing Notice Form with respect to the above petition as all our relevant processes have been filed and served” and was signed by O.A. Obianwu Esq. (SAN). The said letter is endorsed as having been received on 24/06/11. Also annexed to the affidavit is Exhibit ‘B’ a photocopy of a Visa belonging to Idigo Chinedu Francis to show that he was outside the Country as at when the Tribunal suo motu raised the issue of the Appellants’ non production of the Application for issuance of the Pre- Hearing Notice on the 4th of August 2011, so as to have produced Exhibit A thereat.
In reaction to the Appellants’ Affidavit, the 2nd Respondent filed a counter-affidavit of 14 paragraphs dated 25th October, 2011 and annexed thereto the Ruling of the Tribunal delivered on the 4th of August, 2011 which was the subject of the earlier appeal to this Court, as Exhibit ‘A’. The 1st Respondent also filed a Counter-affidavit of 19 paragraphs on 21st of October, 2011 without any Exhibits. On the 26th of October, 2011, the Appellants in reaction to the Counter-affidavit of the 1st Respondent filed a Further Affidavit of Facts to which he annexed Exhibits ‘B’, ‘B1’, ‘B2’ and ‘B3’, which were similar letters to Exhibit ‘A’ written by the same Chambers of O.A. Obianwu & Co. and Perimeter Chambers, dated 22nd June, 24th June, 2011; 2nd August, 2011 and 22nd June, 2011 respectively, to the Secretary of the Election Tribunal.
Also a Further Affidavit of Facts was deposed to in reaction to the Counter-affidavit of the 2nd Respondent. That Further Affidavit dated and filed on the 26th October, 2011 also has similar letters annexed thereto. A Further Counter-affidavit dated and filed on 1st November, 2011 in reaction to the Further Affidavit of the Appellants was also deposed to by the 2nd Respondent. On the 2nd day of November, 2011, parties addressed the Tribunal and in a preliminary Ruling, the Tribunal held as follows at page 556 of the Records:
“We have considered the affidavits evidence filed by parties in this petition and we are of the view that the affidavits are in sharp conflict which cannot be resolved on the basis of the affidavit. While the petitioner asserted that they made and delivered Exhibit A attached to their affidavit to the Secretary of the 1st Tribunal, the Respondents in their respective counter affidavits and further counter affidavits asserted that no such application was made. They further asserted that they confronted the Secretary of the Tribunal with Exhibit A and he denied ever receiving the exhibit.
In the light bf such sharp conflict, we are of the humble view that the evidence of the Secretary of this Tribunal is not only material but necessary in resolving the conflict.
We therefore ordered (sic) that, the Secretary of this Tribunal be invited to the witness box to give oral evidence.”
Following this Ruling, the Secretary mounted the witness box and testified denying the receipt of Exhibit ‘A’ attached to the Affidavit of Facts filed by the Petitioners. Under cross-examination by G.B. Obi Esq. and upon being confronted with Exhibit ‘B’ and ‘B1’ he admitted receiving and signing on them, but when confronted with Exhibit ‘A’ he denied ever receiving it or that it is similar to Exhibits ‘B’ and ‘B1’.
On further cross-examination he admitted meeting 2nd Petitioner when he came to file the Affidavit of Facts and that when the Affidavit was brought he questioned the 2nd Petitioner as to who signed Exhibit ‘A’ and that he even drew the attention of his Assistant Secretary to the strange discovery. He subsequently asked the 2nd Petitioner to bring an application for the certification of Exhibit ‘A’. Still on further cross-examination he however confirmed that the 2nd Petitioner had shown to him the Original of Exhibit ‘A’ which the Petitioner claimed that he (the Secretary) received. He denied the further suggestion made by learned counsel to the Appellants that the signature and date on Exhibit ‘A’ was made by him (the Witness/Secretary).
Upon being further questioned, he stated that they served applications made by letters to other parties, and some were not served on the basis of instruction by the Chairman of the First Panel of the Tribunal. He added with specific reference to Exhibit ‘B1′ that other parties were served.
Finally, he admitted that Exhibit B and B1 have no addresses of service but denied that Exhibits A and B were received by him on the same date.
Upon receipt of his oral evidence, learned counsel on all sides then rendered their final addresses culminating in the Ruling of the Court which is the subject of this Appeal.
The witness was not cross-examined by learned counsel for the Respondents and thereafter, G.B. Obi Esq. for Appellants addressed the Court to the effect that the witness having admitted receiving Exhibits B and B1, the Tribunal should compare the signatures in Exhibits B and 81 with Exhibit A to
determine if the witness told the truth in respect of the document in question.
He wondered why the witness who purported that he did not receive Exhibit A would request the 2nd Petitioner to bring an application for certification of the document. He then urged the Court to discountenance the evidence of the Secretary as same was not credible and resolve the issue on the basis of the documents placed before the Court (Exhibits A, B and B1).
Chief E.E. Egbunonu for the 1st Respondent submitted that the Secretary had testified that he did not receive Exhibit A and that the said Secretary has no vested interest in the Petition and also had testified that he requested that the 2nd Petitioner bring application for certification which was never brought.
J.O. Nnadi, SAN for the 2nd Respondent on his part submitted that the evidence of the Secretary corroborated their depositions in both their Counter-affidavits and Further Counter-affidavit and urged the Tribunal to believe the Secretary because from the evidence of the Secretary he had from the first day challenged Exhibit A but by the Appellants’ Affidavit they seemed to give the impression that the Secretary was on the Appellants’ side? He then urged the Tribunal to use the evidence of the Secretary to resolve the issue having regard to the fact that all the parties rely on his evidence for this purpose.
The learned senior counsel finally urged the Tribunal to hold that there was no application for Pre-hearing and resolve the issue against the Appellants (then Petitioners). Nicholas Asuzu Esq. for the 4th Respondent identified himself with the submissions of the learned SAN and urged the Tribunal to believe the Secretary.
At the close of the addresses of counsel, the Tribunal ordered for a stand down for ten minutes to enable members write their Ruling. Upon resumption at 12 noon, the Ruling was so delivered in open Court after which the Tribunal demanded learned counsel on all sides to address it on the effect of the Ruling. G.B. Obi Esq. for the Appellants expressed his un-readiness and sought for a date and order of Court for Written Addresses, a request which chief Egbunonu, Nnadi SAN and Asuzu Esq. opposed vehemently.
Inspite of the insistence by Mr. Obi for an adjournment because the issue had the effect of terminating the life of the Petition; the Tribunal never the less, ruled that the application for adjournment was without merit because according to them, their (Tribunal’s) basis for the address which was on the effect of that day’s Ruling on the life of the Petition, was simple and straight forward. The learned Judges then invited the Appellants’ counsel to proceed and stood down the Petition for five minutes upon the request of the learned counsel for the Appellants.
Upon resumption of hearing, the learned counsel for all the parties addressed the Tribunal, and in sum, the learned counsel for the Appellants urged the Tribunal on all the authorities cited to hold that the petition could not be said to have been abandoned by the Petitioners so as to warrant the invocation of Paragraph 18(4) of the First Schedule to the Electoral Act, because to do so would tantamount to slavish adherence to the Rules of Court to the detriment of substantial justice which the Courts have been requested by various decisions of the Supreme Court to avoid. He then urged the Court to invoke Paragraph 53(2) of the First Schedule to the Electoral Act, on noncompliance with the Rules.
C.C Okaa Esq. for the 1st Respondent, relying on the authority of Okereke v. Yar’Adua (supra) submitted that, the Tribunal had complied with the Judgment of the Court of Appeal and after hearing the Appellants on the Affidavits of Facts, found that no letter had been delivered to the Tribunal under Paragraph 18(1) of the First Schedule and that the Tribunal had to resort to Paragraph 18(4) of the said Schedule and dismiss the Petition for want of jurisdiction same having been abandoned.
For O.J. Nnadi Esq. learned senior counsel for the 2nd Respondent, he also harped on the non fulfilment of the provision of Paragraph 18(1) and the effect as provided for under Paragraph 18(4) of the same Schedule. He further cited several authorities which he distinguished from the ones cited by the Appellants to urge the Tribunal to invoke paragraph 18(4) of the Schedule and dismiss the petition for want of jurisdiction.
Mr. Asuzu for the 4th Respondent, as usual, aligned himself with the submissions of learned senior counsel for the 1st and 2nd Respondents as according to him the petition was like a human being without a heart. It would be recalled that the Tribunal had ruled before calling on the parties to address it on the effect of that Ruling after hearing the oral evidence of the Secretary of the Tribunal and comparing Exhibits A and B, B1- B3 attached to the Affidavit and Further Affidavit of Facts of the Appellants inter alia:
“The evidence of the Secretary substantially corroborated the counter-affidavits and further counter-affidavits of the Respondents.
It is in that light, that we believe the testimony of the Secretary of the Tribunal. We have no reason to disbelieve him. He has no interest or was not shown to have any interest in the Petition. He therefore has no reason what so ever to lie or deliberately support the case of any of the parties to the detriment of the other. We believe him. We have also compared the signatures on Exhibit A attached to the Affidavit filed by the Petitioners and those on Exhibit B, B1 – B3 attached to the Affidavit and found therein similarities but that cannot sufficiently dislodge or discredit the evidence of the Secretary. We accept his evidence as truthful and consequently (sic) made the following finding:
1. That no letter of application for the commencement of pre-hearing section was delivered to the Secretary of this Tribunal on the 24/06/11 by the petitioner.
We therefore (sic) resolved the conflict in affidavit against the Petitioners” see pages 571-572 of the Records.
Consequent upon the Addresses of parties by their respective learned counsel on the effect of the above Ruling on the petition as demanded by the Tribunal, the members of the Tribunal held that on the authorities of Okereke v. Yar’Adua (supra) and Nwankwo v. Yar’Adua (2011) 13 NWLR (pt.1203) 81; the consequence of the breach of Paragraph 18(1) of the First Schedule to the Electoral Act, 2010, harsh as it is, is still the law in operation for the regulation of the proceedings of Tribunals. “Where there is non-Compliance with the paragraph as was found in the instant case’, the learned Judges maintained; ‘the Tribunal has only one legal duty, which is to declare the petition abandoned and dismissed”. The learned members of the Tribunal having so held, invoked paragraph 18(4) of the First Schedule to the Electoral Act, 2010 (as amended) and dismissed the Appellants’ petition on the ground that they did not apply for issuance of Pre-hearing Notice as required of them under paragraph 18(1) thereof and that the Petition was deemed abandoned.
The pertinent question that calls for an answer shun of all the unnecessary arguments of learned counsel; is whether in the first place, there were sharp or irreconcilable conflicts in the affidavits of the parties so as to warrant the calling of oral evidence by the Tribunal in view of the annexed Exhibits A and B-B3 which the Tribunal found to be similar? There is no doubt and the law is trite, that when a Court is faced with affidavits which are irreconcilably conflicting, the Judge hearing the case should first hear oral evidence from the deponents or such other witnesses as the parties may be advised to call for purposes of resolving the conflict. Section 116 of the Evidence Act, 2011; which provides that: “When there are before a court affidavits that are irreconcilably in conflict on crucial facts, the court shall for the purpose of resolving the conflict arising from the affidavit evidence, ask the parties to proffer oral evidence as to such oral evidence of the deponents of the affidavits and such other witnesses as may be called by the parties;” is very instructive. See Falobi v. Falobi (7976) 9 & 10 SC 1 at 15; Ebohon v. Att. Gen. Edo State & Ors. (1994) 6 NWLR 190.
The Supreme Court had made it explicitly clear in a plethora of cases while interpreting the above Section of the Evidence Act, that whether or not any of the parties asked to be allowed to cross-examine any of the deponents or to call any witness for the resolution of such conflicts in the affidavits of parties; such an omission should not be taken to mean consent that affidavit evidence only can be used in such circumstances. See further Korkor v. Buachie & Anon (1938) 4 W.A.C.A 83; Akinsete v. Akindutire (1966) 1 ALL NLR 147; Eboh & Anor. v. Oki & Ors. (1974) 1 SC 179 at 189 & 190; Olu-Ibukun v. Olu-Ibukun (1974) 2 SC 41 at 88 and Uku & Ors. v Okumagba & Ors. (1974) 3 SC 35 at 64 to 65. However, as was rightly submitted by learned counsel for the Appellants while relying on the decision of this Honourable Court Calabar Division in the case of Essien v. Inyang (2011) LPEAR CA/C/103/2008: “The necessity to invite oral evidence is however only in cases of real conflict in material evidence and affects the substance of the case. Where the conflict is not substantial or material me procedure of oral evidence is inapplicable.” See Odedeyi v. Odedeyi (2002) 2 SC 93.
In the same vein, the Courts have also held that where there is before the Court some other evidence like documentary evidence, the conflict may be resolved without calling for oral evidence. Ezegbu & Anor v. First African Trust Bank Ltd. & Anor. (1992) 1 NWLR 669 and Onagoruwa & Anor. V. Adeniji (1993) 5 NWLR 317 at 347.
Against this background and going by the averments of the Deponents in their respective Affidavits and Counter- Affidavits, can we at this juncture truly say that there were such irreconcilable conflicts substantial or material or no other likely documentary evidence, as would warrant the calling of oral evidence only for their resolution? To answer this question, it is only proper to resort to the salient averments in the affidavits and counter-affidavits of the respective parties. For instance the Appellants in their said affidavit:
“2 That the petitioner did by letter of their counsel dated 22nd June, 2011 addressed to the Secretary of the Tribunal applying for issuance of prehearing Notice in the petition. Copy of the said letter is hereto annexed as Exhibit A.
3. That I personally delivered the said letter to the Tribunal and it was acknowledged.
4. I retained the duplicate copy of the letter.
5. I was out of the Country on the 4th August, 2011 when the point that the application was not made for pre-hearing Notice in the petition was raised by the previous panel and could not be reached by our solicitors to make the document available to them. Copy of my International passport is hereto annexed as Exhibit B.”
In reaction to the above averments, the 2nd Respondent deposed to the following facts in its counter-affidavit thus:
“4. That paragraphs 2, 3, 4 and 5 of the affidavit are false
5. That the petitioner did not make any application for pre-hearing Notice in this petition dated the 22nd June, 2011 or at any other date either by any letter or by any other form.
6. That there is no application or letter of any sought for Pre-hearing Notice in the file of the Tribunal up till this moment.
10. That the Exhibit A attached to this affidavit does not show the name of the receiver, nor his or her rank neither was it stamped with the tribunal stamp nor certified true copy emanating from this tribunal.
11. That I have in the course of my duties above stated confronted the Registrar of the Tribunal and nobody accepted that he or she owns the signature nor indicated that the signature belongs to any Registrar of the Tribunal. “See pages 519-520 of the Record.
The Counter affidavit of the 1st Respondent is similar to the 2nd Respondent’s Counter affidavit which excerpts are reproduced above. See pages 528-530 of the Record.
In response to the said counter affidavits, the Appellants filed a Further Affidavit, the relevant portions which are reproduced hereunder as follows:
“4 That our (petitioners) application to the Secretary of the Tribunal was received and acknowledged by the Secretary of the Tribunal who I can identify.
7. That hereto annexed and marked Exhibit B-B3 are certified true copies of similar applications by letter for issuance of pre-hearing notice by various counsel to the Secretary of the Tribunal in other petitions.
8. That none of the said similar applications (Exhibits B-B3) was filed, stamped served on the opposing party or contain the name of the officer of the tribunal that acknowledged receipt of the letter.
9. Exhibits B and B1 were received by the Secretary of the Tribunal on the same date as our own application (Exhibit A) to my affidavit of fact) and by the same person.
10. Exhibit B1 was made by the counsel to the 1st Respondent in this case.
11. That the original of our said application (Exhibit A to my affidavit of fact) mysteriously disappeared from the Courts file.
12. The only way we can show that we made and delivered the letter of application to Tribunal is by producing Exhibit A, the duplicate copy endorsed by the Secretary of the Tribunal.” See page 531-544 of the Record.
It is pertinent to note that even though the 2nd Respondent did swear to a Further Counter-affidavit, the very material averment by the Appellants that 2nd Appellants personally submitted the Application in the form of Exhibit ‘A’ to the Secretary, which Application mysteriously disappeared; was neither challenged nor controverted and ought to be admitted and acted upon by the Tribunal without calling for oral evidence. See Section 22 of the Evidence Act, 2011 and Tobi, JCA (as he then was) in Shodipo v. Lemminkainen OY and Anor. (1992) 1 NWLR (pt.258) 229 at 244; Alagbe v. Abimbola (1978) 2 SC 39; Agbaje v. Ibru Sea Foods Ltd. (1972) 5 SC 50; NBN Ltd. v. Are Brothers Nig. Ltd. (1977) 6 SC 97 and Habib Nig. Bank Ltd. v. Wahab Opomulero & Ors. (2000) 15 NWLR (pt.960) 315 at 330.
Apart from the fact that the averments in the further affidavit were not countered, the Appellants consistently asserted that they submitted this letter to the Secretary of the Tribunal whom they could identify. Infact a look at Exhibits A, B, B1-B3 and the endorsement therein would reveal that the hand
writings which include the signatures and the dates, display similar characters and characteristics which went or go a long way to establishing the fact that the Secretary of the Tribunal signed Exhibit A and duly received same on the 24th day of June, 2011.
Also a careful perusal of the Affidavits and Counter- Affidavits of the parties and indeed the endorsements of all the processes in the Records and the certified Exhibits annexed to the Affidavits would reveal starkly that they bear similar signatures with the same characters of the letters and figures with the characteristic features of the endorsement on Exhibit ‘A’. See for instance pages 447 to 476 and 515 to 546 of the Records. Just as Exhibit ‘A’ does not contain the names, rank, stamp of the Secretary and Tribunal and Addresses for Service, so do Exhibits B, B1-B3.
Again, the fact that the application for issuance of Pre-hearing Notice was duly and actually made to the Secretary, is amply buttressed by the evidence of the Secretary himself that he invited the 2nd Appellants to bring an application for certification. The pertinent question now is if the Secretary had no copy of the Appellants’ application, from which copy could Exhibit A have been certified as requested? The only answer is that he (Secretary) was in possession of that letter, but he mysteriously disappeared same only for him to turn round and with the tacit connivance of the Tribunal to deny receipt thereof.
Recall that the said Secretary had testified to the fact that “We do serve application made by letters to other parties and some were not served, on the bases of instruction by the Chairman of the Tribunal i.e first panel. Specifically in Petition B1 (Exhibit?) we served other parties with letters of application. ”
However, on further cross-examination by the learned counsel for the Appellants, he admitted that “In Exhibits B, B1, (sic) the attached to the further affidavit there was no address for service.” In other words, he could have received the Appellants’ application but upon the instruction of the Chairman he could also have destroyed it to abort the petition of the Appellants as they have done. We shall come to the necessary inference to be drawn from the evidence of the Secretary anon.
Suffice it to say that there are ample documentary evidence to support the case of the Appellants and his averments that he submitted the application in Exhibit A personally to the Secretary.
From all indications, there were no material conflicts in the affidavit of the parties that would have warranted the calling of the Secretary for the resolution of such conflict, I will not bother myself with the assertion by the Appellants’ counsel that the Tribunal” suo motu called the Secretary by reason of the authorities earlier cited and since in this case it was learned senior counsel for the 2nd Respondent who called for a resolution of the purported conflicts by the oral evidence of the Secretary. On the whole, I resolve Issue Number One in favour of the Appellants.
ISSUE TWO.
i. Whether the Tribunal was not in grave error when relying solely on the incredible oral evidence of the Secretary to the tribunal(sic) it came to the conclusion that the Appellant did not make an application for the issuance of Pre-hearing Notice(Grounds 2 & 4).
Having resolved Issue Number One in favour of the Appellants, the answer to Issue Number Two is simple having earlier held that by the Tribunal admitting that there are similarities in the signatures of the Secretary in Exhibits A, B, B1-B3, and other documentary evidence on Record; the Tribunal ought to have resolved the Issue in favour of the Appellants without the learned members of the Tribunal bothering themselves to call the Secretary to give oral evidence in that respect.
However, for purposes of emphasis it is necessary to recap the evidence of the Secretary once more; that he testified in his evidence in chief denying the receipt of Exhibit ‘A’ attached to the Affidavit of Facts filed by the Petitioners, but that under cross-examination by G.B. Obi Esq. and upon being confronted with Exhibit ‘B’ and ‘B1’ he admitted receiving and signing on them, but when confronted with Exhibit ‘A’ he denied ever receiving it or that it is similar to Exhibits ‘B’ and ‘B1’.
On further cross-examination he admitted meeting 2nd Petitioner when he came to file the Affidavit of Facts and that when the Affidavit was brought he questioned the 2nd Petitioner as to who signed Exhibit ‘A’ and that he even drew the attention of his Assistant Secretary to the strange discovery. He subsequently asked the 2nd Petitioner to bring an application for the certification of Exhibit ‘A’. Still on further cross-examination he however confirmed that the 2nd Petitioner had shown to him the Original of Exhibit ‘A’ which the Petitioner claimed that he (the Secretary) received. He denied the further suggestion made by learned counsel to the Appellants that the signature and date on Exhibit ‘A’ was made by him (the Witness/Secretary).
Upon being further questioned, he stated that they served applications made by letters to other parties, and some were not served on the basis of instruction by the Chairman of the First Panel of the Tribunal. He added with specific reference to Exhibit ‘B1′ that other parties were served. Finally, he admitted that Exhibit B and B1 have no addresses of service but denied that Exhibits A and B were received by him on the same date.
From the totality of the evidence elicited by the Witness/Secretary, was the tribunal right to have ascribed probative value to his testimony to the extent of believing him? Here is a witness who denied receiving Exhibit A but admitted been shown the original of the document by the 2nd Appellant in the course of coming to file the Affidavit of Facts. Yet in another score, he purportedly invited the 2nd Appellant to come for the certification of the document a similar copy which was purportedly not received nor was in his possession. Whereas he purported that applications by way of letters were served on other parties, and in particular that Exhibit B1 was so served; upon being confronted with the said Exhibit B1 he confirmed that it had no address for service. Add these testimonies to the findings of the Tribunal that Exhibits B1-B3 have similarities and the incredibility of the witness’ evidence comes out in bold reliefs. Yet this was the witness that the Tribunal so believed that his evidence corroborated the Counter-affidavits of the Respondents that he the Secretary did not receive Exhibit A.
Talking of the credibility of the evidence led by the Secretary, needless to say and we are not oblivious of the fact that the learned members of the Tribunal as a Court/Tribunal of first instance, had the overwhelming privilege and advantage of watching the demeanour and hearing the Secretary testify and as such, were in a proper position to ascribe probative value to his said evidence before coming out with their findings of facts that he did not receive Exhibit A. See Dumez v. Nwakobia (2008) 36 NSCQR (PT.II) 885 at 906; Akinloye v. Eyiyola (1968) NMLR 92; Woluchem v. Gudi (1981) 5 SC 391 and Amadi v. Nwosu (1992) 5 NWLR (PT. 241) 273.
The learned members also were in a better position to hold as they did that they believed the Secretary and that his evidence corroborated the averments in the Counter-affidavits of the Respondents that he did not receive Exhibit A if the evidence were cogent, credible and compelling. The law is also trite that as an Appellate Court we cannot interfere with the findings of facts of the trial tribunal which enjoyed such advantage and privilege as afore said unless there are exceptional circumstances.
However, where as in this case the findings of fact of the Tribunal are perverse and not borne out of the totality of the evidence before it, and have clearly led to a miscarriage of justice against the Appellants, this court will interfere and set aside the perverse findings. Also where as in this case, the duty of this Court is merely to draw inferences from proved facts and documentary evidence tendered before the trial Tribunal; we are in as good a position as the court of first instance to so do. In Dumez v. Nwakhobia earlier cited, Mahmud Mohammed JSC put the position of the law on the scenario created by the Tribunal which warranted this appeal, so succinctly thus:
“The circumstances in which a Court of Appeal is entitled to interfere with and reverse the findings of fact of the Court of trial are well settled. A Court of Appeal will only interfere with a finding of fact of the court of trial when it is clear that the finding is perverse, and not flowing from facts relied upon, or is not a proper exercise of the court’s judicial discretion, See Onowan & Anor. v. Iserhein (1976) 1 NMLR 26. Where also there is ample evidence and the trial court has failed to evaluate it and make findings, the Court of Appeal is entitled to evaluate such evidence and make findings which the court ought to have made ….. See Shell Development Co. of Nig. Ltd. v. His Highness Pere Cole & Ors (1978) 3 S.C. 188. However, there must be before the Court of Appeal a ground raising the issue directly or on which the determination of the issue depends. Chief Frank Ebba v. Chief Warie Ogodo & Anor. (1984) 4 S.C. 99.”
See also Onwuka v. Omogui (1992) 3 NWLR (pt.230) 393; Fan Milk Ltd. v Edemeroh (2000) 9 NWLR (pt.672) 402; Woluchem v. Gudi & Ors. (1981) SSC 519; Ebba v. Ogodo (1982) SC 79; Akulaku v. Yongo (2002) 5 NWLR (pt.759) 135 and Military Governor of Ondo State & Ors. v. Kolawole & Ors. (2008) 35 NSCQR 506 at 532 per Mukhtar JSC.Going by the above authorities, and notwithstanding the submissions of learned counsel for the Respondents that Exhibit A having not emanated from the Tribunal cannot be given the level of credence expected of the Appellants and the motley authorities cited by the Respondents’ counsel; I reiterate that the tribunal having by itself held at page 571 of the Records in lines 16 to 18 that: ” We have also compared the signatures on Exhibit A attached to the Affidavit filed by the Petitioners and those on Exhibit B, B1-B3 attached to the Affidavit and found therein similarities’; they cannot turn somersault to hold as they did that ‘but that cannot sufficiently dislodge or discredit the evidence of the Secretary.”
This is because, there was no evidence before the Tribunal that the 2nd Petitioner/Appellant forged the signature of the Secretary and no hand writing expert was called to distinguish between the similarities of the characters in the signatures of Exhibits A, B-B3. I hold the view that the Appellants had discharged their primary onus and burden of establishing the fact that the signature in Exhibit A was that of the Secretary and the onus and burden of proving beyond reasonable doubt to the contrary shifted to the Secretary to show that Exhibit A was faked or a forgery. See the dictum of Uwaifo JSC in Adenle v. Olude (2002) 18 NWLR (pt.799) 413; at page 431-432 paras.
E-E quoted in extenso by learned counsel for the Appellants; Adelaja v. Alade (1999) 6 NWLR (pt 608) 544 at 557-558 (SC) and Ikoku v. Ikoli (1962) 1 SCNLR 307.
The Supreme Court had cause to pronounce on a similar situation as we have found ourselves in Ayanru v. Mandilas Ltd (2007) 10 NWLR (pt.1043) 462; 481 paras A-E., when their Lordships stated while interpreting Section 61(1) and (2) of the old Evidence Act (now Section 68 (1) and (2) of the Evidence Act, 2011) inter alia:
…In line with the provisions of section 61(1) and (2) of the Evidence Act which provided for the method of proving signature by comparing the undisputed signature on a document with that sought to be proved the evidence of DW2 who was the company secretary of the respondent and who in the course of his duties had occasion to go through the file of the appellant’91s property containing relevant documents signed by the appellant, is indeed relevant DW2 identified the signature of the appellant on the Deed of Lease Exhibit ’91A’91 which the appellant himself agreed was executed by him but not by thumb impression as claimed in his oral evidence but by signing his name as shown on the document. The witness also identified the signature of the appellant on the receipts Exhibits G’97G3 for the payment of rents received from the respondent by the appellant also signed by the appellant, particularly the receipt for the payment to him of the sum of ?2,880 Exhibit G3 which the appellant himself admitted issuing to the respondent and which receipt contained his signature. Clearly, the signature on the documents admitted to have been signed by the appellant exhibit or show the same similarities with the disputed signature on the Deed of Lease Exhibit ’91B’91 and ’91F’91 which DW2 said was signed by the appellant. The Court below was therefore right in accepting the evidence.”
Still on the issue of non proof of forgery, the dictum of Pats Acholonu, JSC (of the blessed memory), in Amadi v. Orisakwe & Ors (2005)s 7 N.W.L.R (Pt.924) 385; 402 paras F -G; is very instructive that;
“It is interesting to observe that while the respondents insisted they never signed any deed i.e part of Exhibit A, they did not aver in their statement of defence that the signature said to be that of their father was forged and therefore the document was a fraud.”
Notwithstanding all the brilliant submissions of learned counsel for the Respondents, I agree completely with the submission of the learned counsel for the Appellants on the authorities above cited that none of the Respondents averred in their Counter-affidavits that Exhibit A was forged and no iota of evidence was adduced to that effect. I further endorse the submission of the learned counsel for the Appellants on this issue that the decision of the Tribunal which was predicated on the mere denial of the Secretary of the Tribunal that he received Exhibit A and that the Appellants did not make an application for the issuance of the Pre-hearing Notice, is against the weight of evidence; and to say the least perverse and had occasioned substantial miscarriage of justice against the Appellants. Accordingly, Issue No. 2 is also resolved in favour of the Appellants.
ISSUE NUMBER THREE.
Whether the Tribunal was right in dismissing the petition have found as ordered by this court, that no application for pre-hearing Notice was made and received by the Secretary of the Tribunal on 24/6/2011 or at any other date. (Ground 1).
On this Issue, the bone of contention and as has been held by the Court, is whether the Appellants neglected or failed to comply with the provisions of Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 and thus had abandoned their petition. Whereas the Appellants contend that the Tribunal was wrong on the facts and circumstances of the matter to have treated the petition as having been abandoned for non-compliance with the above paragraph, thereby invoking paragraph 18(4) of the First Schedule to the Electoral Act, 2010 (as amended); the learned counsel for the Respondents in their Briefs are all ad idem citing a host of cases including Okereke v. Yar’Adua (supra), Nwankwo v. Yar’Adua (supra) and the recent unreported case of this Honourable Court in Appeal No. CA/E/EPT/40/2011-Uzama Okpateke & Anor. v. Forte Dike & Ors. delivered on 5/12/2011; to submit that the decision of the Tribunal dismissing the petition as abandoned pursuant to the said paragraph 18(4) of the First Schedule to the Electoral Act is unassailable. The Respondents have cited in particular the holding of the Supreme Court in Okereke v. Yar’Adua (supra), their Lordships enthused at page 118, while interpreting paragraph 3(4) of the Tribunal and Courts Practice Directions, 2007 which is impari materia with paragraph 18(4) of the First Schedule to the Electoral Act, 2010 (as amended) as reproduced hereunder.
“Secondary, sub-paragraph 4 of paragraph 3 as quoted above, makes it mandatory that where neither petitioner nor the respondent files an application for pre-hearing session, the tribunal or court is under a duty to dismiss the petition as abandoned and no application for extension of time to take that step shall be filed or entertained Now, although the stipulate under subparagraph (4) of paragraph 3 of the practice Direction, appears to me to be harsh on the petitioner by making an order for dismissal of the petition which forecloses any chance for him to represent the petition, it still had to be complied with by the tribunal or court as such steps are a condition precedent to the hearing of any matter in relation to the petition pending before the tribunal or court. Non compliance thereof will strip off the tribunal or court of jurisdiction as one of the factors which confer jurisdiction on a court law is not complied with”.
The above decision notwithstanding and while not oblivious of the impregnable doctrine of stare decisis, it my humble view and I agree with the position taken by the Appellants that they have shown from Issues Number 1 and 2 that the decision of the Tribunal was perverse, especially in view of the clear finding that the signatures in the contested Exhibit A and Exhibits B, B1- B3 (which the secretary admitted he endorsed), are similar.
On another wicket, it cannot be said from the totality of the evidence and particularly the Records of the Court that the Appellants did not file their application for Pre-hearing Notice as in Exhibit A. For instance, as was earlier noted, on the 12th of July, 2011; upon the grant of the Application of Ajaegbo Esq. for the 2nd Respondent to file her Reply out of time; the Tribunal had ordered as follows:
“This matter is hereby set down for Pre-Hearing on Tuesday 19/7/2011 at 10.30 a.m. Learned Counsel for the Petitioners shall file and serve the necessary forms accordingly. The Learned Counsel for the Respondents shall file and serve their Answer to the Questions on the Information Sheet. All Interlocutory Applications shall be filed and served before the said date.” See pages 448-449 of the Records.
Pursuant to the above order of the Tribunal the Appellants had since on the 15th of July, 2011 filed their Pre-hearing information sheet and on the 27th day of July, 2011, the court adjourned to Thursday, the 4th day of August, 2011 for continuation of pre-hearing and closure. Also the 1st and 2nd Respondents had earlier filed their pre-hearing information sheets on the 13th of July, 2011; as can be gleaned from pages 423 to 446 of the Records.
The pre-hearing actually commenced from the 19th of July, 2011, continued to 27th of July, 2011 and was adjourned to 4th August, 2011; the Tribunal having extended the pre-hearing period by 4 days.
On all these days of pre-hearing the Respondents participated fully until the 4th August 2011 when the exercise had closed and Mr. Obi for the Appellants had announced that there were no further Applications only for the Learned Justices of the Tribunal to wake up from their slumber purporting to rely on Okereke v. Yar’ Adua (supra) and upon the prodding of the Respondents who also ought to have filed similar Applications or motions for dismissal pursuant to Paragraph 18(3) of the First Schedule to the Electoral Act, 2010; (which they failed to do); and dismissed Appellants’ Petition for being abandoned.
The pertinent question that calls for an answer again is whether in the light of Paragraph 18(1) of the 1st Schedule to the Electoral Act there can be an order by the Tribunal for issuance or filing of Form TF008 without a concomitant application first made and approved for the issuance of a Pre-Hearing Conference Notice as in Form TF007? We shall invite Paragraph 18 (1) and (2) of the 1st Schedule to the Electoral Act to speak for itself as follows:
“18-(1) Within 7 days after the filing and service of the petitioners reply on the respondent or seven days after the filing and service of the respondent’s reply, whichever is the case the petitioner shall apply for the issuance of pre-hearing notice as in Form TF007.
(2) upon application by petitioner under sub-paragraph (1) of this paragraph, the tribunal or court shall issue to the parties or their Legal Practitioners (if any) a pre-hearing conference notice as in Form TF007 accompanied by pre-hearing information sheet as in Form TF008 for-
(a). the disposal of all matters which can be dealt with on interlocutory application;
(b). giving such directions as to the future course of the petition as appear best adapted to secure its just, expeditious and economical disposal in view of the urgency of election petitions;
(c). giving directions on order of witnesses to be called and such documents to be tendered by each party to prove their cases having in view the need for the expeditious disposal of the petition; and
(d). fixing clear date for hearing of the petition. ”
By the provision of sub paragraph (3) “The respondent may bring the application in accordance with sub paragraph (1) where the petitioner fails to do so, or by motion which shall be served on the petitioner and returnable in 3 clear days, apply for an order to dismiss the petition.”
From the provisions of sub paragraph (2) of paragraph (18), it is clear that the tribunal or court can only issue the parties or their Legal Practitioners Form TF008 after the grant of the application by the tribunal or court for the issuance of Form TF007. In other words, from the wordings of the penultimate line in the sub paragraph (2), it is patently clear that like Siamese twins, the issuance of Form TF007 must be accompanied by a pre-hearing information sheet as in Form TF008. Put the other way round, the issuance of Form TF008 as in this case presupposes that Form TF007 subject to the application in Exhibit A, must have been issued to the Appellants or their Legal Practitioner. As has been shown earlier, on the 12th of July, 2011, the Tribunal ordered the issuance of Form TF008 which presupposes that Form was issued along with TF007.
The onus was therefore on the Tribunal to show why the Appellants were issued with Form TF008 without TF007 or without an application for that purpose which the Secretary to the Tribunal failed to do. Moreover, by the order of the 12th day of July, 2011 and the proceedings following from the 19th to 27th July culminating in that of 4th August, 2011, wherein it was disclosed that all interlocutory applications and any other thing that ought to be done at the pre-trial conference thereof had been completed pending the hearing of the petition; the Tribunal had fulfilled the dictates of sub paragraphs (2)(a) to (d) of Paragraph 18 of the 1st Schedule to the Electoral Act.
Before the completion of the pre-hearing conference, if actually the Appellants failed to apply for pre-hearing notice, the Respondents ought to have exploited the initiative of sub paragraph (3) of paragraph (18) to bring an application in line with sub paragraph (1) or a motion for the dismissal of the petition in limine. The Respondents however did not take advantage of the above provisions but partook fully in the pre-hearing conference after due exchange of Forms TF008, only for them to cry wolf on the 4th day of August, 2011 on the promptings of the court, suo motu. Surely the law will not allow a party to approbate and reprobate and this is the essence of the submission of the learned counsel for the Appellants while relying on paragraph 53 of the First Schedule to the Electoral Act, 2010 and Section 167(c) and 168(1) of the Evidence Act, 2011; as there is presumption that the common course of the business of the tribunal was followed, the proceedings regular and formal requisites for its validity were complied with.
In fact by Section 169 of the Evidence Act, 2011, the Respondents and indeed the Tribunal having by their acts or omissions(if at all) caused or permitted the Appellants to believe that Forms TF007 and TF008 were issued subject to the approval of their application as in Exhibit A to their Affidavit of Facts; were estopped from denying that the Appellants fulfilled all the conditions precedent for the hearing of their petition and indeed their petition was not abandoned as purported by the Tribunal and the Respondents. See the decision of the Yola Division of this Court in CA/YL/EPT/ADS/HA/2/2011- Mr. Simon Isa & Anor v. Alhaji Sa’ad Tahir (unreported) delivered on 6th September, 2011, (and which I adopt as mine); where our learned brothers held when confronted with a similar situation as we have found ourselves thus:
“Having accepted service of the Pre-hearing notice and reacted to it, positively, by filing the attached pre-hearing information sheet (Form TF008) and having responded to the Pre-hearing session, by attending the same, I cannot even see the legal basis of the motion by the Appellants, questioning an application of the 1st Respondent for issuance of the Pre-hearing Notice after the said application had achieved its purpose of generating or activating the pre-hearing notice and fixing the pre-hearing session for 14/6/11, which session the Appellant attended to complain!
The Appellants had, therefore waived the right to complain, even if they had any, having responded to the Pre-hearing session after filling and filing the Pre-hearing information sheet to ventilate their stand upon the commencement of the Pre-hearing! A right waived is as good as lost! See Bakare v. Lagos Civil Service Commission (1992) 10 SCNJ 173 at 229; Ogunlade v F.M.B.N (2007) ALL FWLR (pt.367) 944; JFJF v. UBA (2007) All FWLR (pt 381) 1783 and Orakul Resources Ltd v. NCC (2007) All FWLR (pt 390) 1492. See paragraph 53(3) of the 1st Schedule to the Electoral Act, which saves the petition from being dismissed on account of non-compliance with Rules. “Therefore calling on the Tribunal to strike out or dismiss the petition on the allegation that the application for issuance of the Pre-hearing Notice was defective after the Tribunal had acted on the application and issued Notice for the Pre-hearing session, and had actually fixed a date for the pre-hearing amount to inviting the tribunal to sit on an appeal over its said decision to issue the pre-hearing Notice and fix date for the prehearing session.”
There is no doubt that Ogbuyinya’s (supra); Lapade Apatatku & Ors v. Idowu Alabi (1985) 2 SC 329: 334 per Nnamani JSC; Akpan v. State (2002) FWLR (pt 110) 1845; Ondo State University v. Falayan (1994) 7-8 SCNJ (pt. 1) 186 and Nigerian Airforce v. James (2003) FWLR (pt.143) 257 were not decisions emanating from Election proceedings, which I must agree with the submission of the learned senior counsel for the Respondents are proceedings sui generis, but those authorities are sacrosanct as far as the legal principles enunciated therein are concerned.
For instance the dictum of Ayoola, JSC in Mobil Producing Nigeria Unlimited v, Lagos State Environmental Protection Agency & Ors (2002) 18 NWLR pt.798 P. 1 at P.32, on the distinction between procedural and substantive jurisdiction is unassailable. Said the emeritus jurist of the apex Court:
“An irregularity in the exercise of jurisdiction should not be confused with a total lack of jurisdiction which takes cognizance of the general meaning of the word “jurisdiction” as “the authority which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for it decision.” (see Halsbury’s (op cit) para 715. Procedure for invoking the jurisdiction of the court should not be confused with the authority of the court to decide matters which on the face of the proceedings have been properly presented in the formal way for its decision and which are within its jurisdiction.”
See also Kossen (Nig) Ltd v Savanna Bank (Nig) Ltd (1995) 9 NWLR Pt 420 -439 at 454 -455 Per Ogundare, JSC; Adebayo v. Johnson (1969) 1 All NLR 176 where at page 190, RE: Kellock (1889) 56 L.T.R. 887; and Allen v. Oakey (1890) 62 L.T.R 724; Noibi v. Fikolati (1987) 1 NWLR (pt. 52) 61 and Ezomo w Oyakhire (1985) 1 (Pt.2) NWLR 195; all cited by the learned counsel for the Appellants.
There is yet this dictum by Belgore JSC (as he then was) in F.G.N. v. Zebra Energy Ltd. (2002) 18 NWLR pt 798 162 at 205
The court shall never be shackled by procedure; case is not made for procedure, it is the other way round. Once the procedure employed has brought into focus the issue the parties contest and there is no miscarriage of justice it will not matter that the procedure is not the correct one. Getting to the destination is what is important; it does not matter the means used.
This Court will certainly not disturb a clear of justice between the parties by suo motu raising for the parties procedural abnormalities in courts below when the parties never seriously raised exception to that procedure.
The learned counsel for the Respondents have insisted that the absence of jurisdiction cannot be defeated by the so called issue estoppels relied upon by the Appellants as the filing of form TF008 is mandatory on the Appellant.
The case of FRN v. Ifeagwu (2003) 15 NWLR (pt.842) SC 113 at 212 paras E-G; where Tobi JSC held thus:
“I think Prof. Adesanya is right because of the paramount importance of jurisdiction in the judicial process, estoppel, an equitable remedy cannot drown the lack of jurisdiction of a court of law. Where a court or tribunal lacks jurisdiction and the issue is raised, the adverse party cannot succeed in pleading that the action is caught by estoppel. This is because estoppel lacks the legal capacity to revive an act which is a nullity ab inito. A court which holds that an issue of jurisdiction cannot be raised because the party is estopped from doing so will not be doing equity to the adverse party. The moment an act of court or tribunal is a nullity, estoppel cannot resuscitate it.”See also Macfoy v. UAC (1961) 3 ALL ER 1169 per Lord Denning at 1172;
The position of the law as expounded by Tobi JSC above is not in doubt and would have been apposite if the Tribunal had lacked the jurisdiction to entertain the petition from the onset by virtue of any feature or non-fulfilment of any condition precedent. In this case, the petition was initiated by due process and every other procedure for the pre-trial conference had been found to have been fulfilled thus necessitating the holding of the pre-trial conference to its conclusion. We hold that the concept of waiver applied because the Respondents partook in the conference to its conclusion and there was evidence that the Appellants applied and were issued with the necessary Pre-Hearing Notice and Pre-Conference Information Sheet, which documents cannot be issued independent of the other.
Turning to the dictum of I.T. Muhammad JSC, in Okereke w Yar’Adua (supra) at pages 117-118 paras B-G; that case must be distinguished from the present Appeal and assuming but not conceding that the Pre-hearing Notice was not issued, the position of the law now has overtaken the harsh decision in the above cited case because of the de-emphasis on slavish adherence to technical and mechanical justice. The intendment of paragraph 18 of the First Schedule is not to kill or abort petitions at pregnancy. The Electoral Act and the Schedule envisage that procedural mistakes (which are not even present in this Appeal), are bound to be made in the course of proceedings because of the fickleness and volatility of the human mind; hence, the entrenchment of paragraph 53(1), (2), (3), (4) and (5) of the First Schedule on non-compliance with the Rules. Thus no matter what anybody says, the Schedule to the Electoral Act still remains Rules of practice the breach of which is an irregularity that is subject to remedy to save a petition that has been duly initiated in accordance with the Act.
At the risk of repetition, let me re-emphasize what I said in Adams v. Umar (2009) 5 NWLR (pt. 1133) 41: 151 and re-echoed in CA/YL/EPT/ADS/HA/2/2011 – Mr. Simon Isa & Anor v. Alhaji Sa’ad Tahir (unreported) delivered on 6th September, 2011 where this Court said:
“There is a clarion call from the highest judicial Temple of the Land (Supreme Court) on Judges to do substantial justice notwithstanding the sui-generis nature of election petitions and no matter whose ox is gored, for it is only then that our much wanted democratic ethos will blossom and stabilize our beleaguered society.”
A situation where the learned Judges of the Tribunal tacitly connived with the Respondent to truncate and asphyxiate the Appellants’ petition to death even when it was clear that they had fulfilled all the conditions for prehearing which in any case was complete, clearly was against the spirit and letters of the Electoral Act and our much desired democratic culture.
Accordingly, this Issue is also resolved in favour of the Appellants.
This Appeal is meritorious and accordingly succeeds. The Ruling of the National Assembly/Legislative Houses Election Tribunal holden at Awka, Anambra State and delivered on the 2nd day of November, 2011 is hereby set aside. It is consequently ordered that the petition be remitted to the lower Tribunal for hearing on the merits before another Panel. No order as to costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment of my learned brother IGNATIUS IGWE AGUBE, JCA, setting aside the ruling of the trial tribunal. I agree that the Tribunal was in error to have struck out the petition. I abide by all consequential orders made.
ADZIRA GANA MSHELIA, J.C.A.: I read the lead judgment of my learned brother Agube JCA just delivered. I entirely agree with his reasoning and conclusions. My learned brother had adequately treated the issues raised for determination in this appeal. I have nothing to add but to adopt same as mine. I too allow the appeal and endorse all other consequential orders made in the lead judgment, inclusive of costs.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I agree.
ABUBAKAR ALKALI ABBA, J.C.A.: I had the opportunity of reading the judgment of my learned brother Hon. Justice I. I. Agube and I entirely agree with the decision and orders made by him in this appeal, I have nothing more to add.
Appeal allowed.
Appearances
O.A. Obianwu SAN with A.C. Anaenugwu Esq, and G.B. Obi Esq.,For Appellant
AND
Uju Ikeazor (Mrs.) with J.O. Nwankiti (Miss) for the 1st Respondent.
O.J. Nnadi SAN with S.O. Ibrahim Esq., M. Frank-Mmegwa (Miss.) and F.U. Agbazuonu Esq. for the 2nd Respondent.
Clems Ezika Esq, with E. Onyibor Esq. and M. Onwuemena Esq. for the 4th Respondent.For Respondent
