AMBASSADOR AKPANG ADE OBI ODU v. DONALD ETIM DUKE AND ORS(2004)

AMBASSADOR AKPANG ADE OBI ODU v. DONALD ETIM DUKE AND ORS

(2004)LCN/1659(CA)

In The Court of Appeal of Nigeria

On Monday, the 29th day of November, 2004

CA/C/CRS/EPA/GOV/32/04

RATIO

EVIDENCE: WHETHER A PARTY IN LITIGATION CAN INITIATE SUBPOENA PROCESS COMPELLING THE PRODUCTION OF CERTAIN SPECIFIC DOCUMENTS

A subpoena duces tecum is thus a court process, initiated by a party in litigation compelling the production of certain specific documents and other items, material and relevant (emphasis mine) to facts in issue in a pending judicial proceeding which documents and items are in custody and control of the person or body served with the process. (Black’s Law Dictionary). PER DONGBAN-MENSEM, J.C.A.

APPEAL: WHETHER COMPLAINT ABOUT THE FORM OF THE GROUND OF APPEAL BECOMES A TECHNICALITY WHERE PARTIES AND THE COURT ARE MISLED BT THE CONTENTS OF SUCH GROUNDS

The cardinal consideration is that where the parties to an appeal and the court are not misled by the contents of a ground of appeal, complain about its form becomes a technicality which does not occasion a miscarriage of justice. Courts now pursue the cause of substantial justice as against reliance on rules of technicality. (Refer generally to City Engr. (Nig.) Ltd. v. NAA (1999) 11 NWLR (Pt.625) p. 76 at 89; Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) p. 355 at 386-387. PER DONGBAN-MENSEM, J.C.A.

JUSTICES

ALOMA MARIAM MUKHTAR Justice of The Court of Appeal of Nigeria

BABA ALKALI BA’ ABA Justice of The Court of Appeal of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

Justice of The Court of Appeal of Nigeria

JEAN OMOKRI Justice of The Court of Appeal of Nigeria

Between

AMBASSADOR AKPANG ADE OBI ODU Appellant(s)

AND

DONALD ETIM DUKE AND 2,339 ORS. Respondent(s)

DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): The contentious issue before us is the propriety of the ratio decidendi of the trial tribunal (hereinafter referred to as the Tribunal) in setting aside the subpoena duces tecum it had issued to the 1st respondent to produce some documents to wit:-
“The originals of all your academic qualifications, particularly:
1. Your qualifying certificate from Corona School, Apapa, Lagos.
2. Your qualifying certificate from St. Mary’s Private School, Lagos.
3. Your qualifying certificate from Federal Government College, Sokoto.
4. Your qualifying certificate from Federal Government College, Ilorin.
5. Your qualifying certificate from the Federal School of Arts & Science, Lagos.
6. Your Bachelor of Laws (LL.B) degree certificate from Ahmadu Bello University (ABU), Zaria.
7. Your Barrister-at-Law (B.L.) certificate from the Nigerian Law School, Lagos.
8. Your Call to Bar Certificate also from the Nigerian Law School, Lagos.
9. Your Master of Laws (L.L.M) degree certificate from the University of Pennsylvania, U.S.A.”
It is conceded by the appellant that the tribunal had the requisite jurisdiction to set aside the said subpoena duces tecum it had earlier issued, that is the correct position of the law and we need not expend energy on that. (Refer Civil Procedure in Nigeria, 2nd Edition (2000) by Fedelis Nwadialo, SAN pp. 652-655. D.S.P Alameiyeseigha v. Chief Saturday Yeiwa & 3 Ors. (2002) 7 NWLR (Pt. 767) 581 at 600-601 and R v. Lewes, Justices ex parte secretary of State for Home Dept. (1972) 1 QB 232 and Raymond v. Tapson (1883) 22 Ch. Div. 430 at 435 CA.)
What is a subpoena?
The Black’s Law Dictionary, 6th Edition, pg. 1426 provides some useful definitions and explanation of the nature of a subpoena. It defines subpoena as “a command to appear at a certain time and place to give testimony upon a certain matter”.
F. Nwadialo, SAN, learned author (supra p. 652) describes a subpoena as an order or a writ of the court, which may be for the person to attend the court and testify only, called subpoena ad testificandum or for him to produce document in his possession or control referred to as subpoena duces tecum, as was issued in the instant case. The subpoena simplicita could also require the person to do both, i.e., to produce document and also testify; the difference lies in the choice of the form used.
A subpoena duces tecum is thus a court process, initiated by a party in litigation compelling the production of certain specific documents and other items, material and relevant (emphasis mine) to facts in issue in a pending judicial proceeding which documents and items are in custody and control of the person or body served with the process. (Black’s Law Dictionary).
By these definitions, what we need to determine in this appeal is whether the tribunal was right in holding that the documents the subpoena sought were ‘no longer relevant’ on the grounds that issues were not joined on the said documents, (listed supra); the 1st respondent, held the learned members of the tribunal, having admitted the existence of the said documents.
On the 7th day of November, 2004 when the appeal came up for hearing before us, some preliminary issues were raised and addressed.
The learned Senior Advocate to the respondent, Wole Olanipekun, SAN had incorporated a preliminary objection in the 1st respondent’s brief of argument, which was deemed filed and served on the 08/11/04.
The appellant’s brief of argument filed on the 13th April, 2004 and the reply brief were adopted by Mba E. Ukweni, Esq., the learned counsel to the appellant. Counsel further addressed us briefly on the issues raised in the briefs, which he adopted. Counsel urged us to discountenance the preliminary objection and the submission of the 1st respondent against the appeal.
The learned senior counsel to the respondent also adopted the respondent’s brief and emphasized a few issues in a brief oral submission.
The other petitioners/and respondents filed no briefs of argument.
By the notice of preliminary objection, the Senior Advocate of Nigeria urged us to strike out the entire notice and grounds of appeal dated the 25th March, 2004 and filed on the 26th March, 2004.
The grounds for the preliminary objection are:-
i. Ground (ii) and particulars (a) & (b) thereunder do not arise from the decision appealed against.
ii. Particulars (a) and (b) under ground (iii) are argumentative.
The grounds of appeal and their particulars are hereby reproduced for the ease of reference:-
Ground one: Error in law:
The learned trial Judges of the Election Tribunal erred in law when they set aside the subpoena duces tecum issued by the Tribunal and commanding the 1st respondent to produce his certificates and academic qualifications duly pleaded by the petitioner/appellant in paragraph 8 of his petition and admitted by the 1st respondent in his reply to the petition on the ground that the documents having been admitted required no further proof and their production becomes irrelevant to the proceedings when infact the contentious issue of the irregularity of genuineness of the NYSC certificate of exemption is founded on the 1st respondent being a qualified graduate of a university or any tertiary institution which makes the production of those certificates necessary/relevant.
Particulars of error
a) The subpoena was based on facts upon which the parties have joined issues in their pleadings.
b) The issue of validity or otherwise of the NYSC certificate of exemption or qualification for national service under the Nation Youth Service Corps Scheme is founded on the 1st respondent being qualified as a graduate of a university or Tertiary institution which were facts which the subpoena required the 1st respondent to show to the Tribunal.
c) Though pleaded in the positive as found by the Tribunal that does not render the documents irrelevant to the proceedings.
d) The schools attended by the 1st respondent and the qualifying certificates obtained therefrom are all sequence of events culminating in the issuance of the NYSC certificate of exemption, which is in contention.
Ground two: Error in law:-
The learned Judges of the election tribunal erred in law when they prevented the petitioner/appellant from calling a witness of his choice, and determining at the stage of the proceedings what evidence was relevant to the proceedings which determination precluded him from putting in evidence relevant documents in proof of his case thereby interfering with his right to a fair trial.
Particulars or error:-
a) A party has the right to conduct his case and call witnesses of his choice whom he feels is necessary to prove his case.
b) It is the right of counsel to the adverse party to object to the admissibility of the document at the time of tendering it and not at the time of calling the witness.
c) The setting aside of the subpoena has the effect of preventing the petitioner/appellant from calling a witness of his choice to produce documents/evidence necessary to prove his case and assist the tribunal in a fair determination of the petition.
Ground three: Error in law:
The learned Judges of the Election Tribunal erred in law, when they misconstrued and misapplied the decision in Rex v. Agwuna (1949) 12 WACA 456 and A.-G., Western Nigeria v. African Press Ltd. (1965) 1 All NLR 6 with regard to the powers of a court to set aside subpoena issued by it.
Particulars of error:-
a) The authorities relied upon by the tribunal dealt with seditious publication and/or utterances, which were entirely different circumstances from the petition before them.
b) The subpoenas in those cases were set aside because they were vague and applied for on frivolous grounds. They were not required for the purpose of obtaining any evidence that were relevant.
c) In the present case, the subpoena was not vague. What it required 1st respondent to produce was clear and relevant to the petition. It was not to embarrass or ridicule him.
It is the submission of the learned senior counsel that ground 11 of the appeal does not arise from the decision of the tribunal and is therefore not a challenge to the validity of the decision, which an appeal should be. The senior counsel asserts that the said ground is at large and that particulars (a) & (b) of the said grounds are not grounded by the records of proceedings for the appeal. Cites pages 21-30 and 31-32 of the records Pages 21-30 of the small records of proceedings bear the ruling of the tribunal being appealed against.
Senior counsel relies on following cases in support of this point:-
Sarah v. Kotoye (1997) 3 NSCC 331 at 355; (1992) 9 NWLR (Pt. 264) 156, Oba v. Egberongbe (1999) 8 NWLR (Pt. 615) 485 at 489; Igwegbe v. Ezuma (1999) 6 NWLR (Pt. 606) 228, Orugbo v. Una (2002) 16 NWLR (Pt. 792) 175 at 206-207.
On ground iii, the Senior Advocate avers that particulars (a) & (b) subscribed thereunder are argumentative and therefore incompetent, relies on: Jamiyu Aliyu v. Aturu (1999) 7 NWLR (Pt.612) 536; Guda v. Kitta (1999) 12 NWLR (Pt.629) 21 at 39.
The learned senior counsel urged us to strike out the entire notice of appeal and the brief of argument in support thereof as it would be difficult to start the expunction or excising of arguments in support of the remaining grounds of appeal since the sole issue formulated cuts across both the competent and incompetent grounds.
Senior counsel submits upon the following authorities:- Ayalogu v. Agu (1998) 1 NWLR (Pt.532) 129 at 143; Egnr. Nura Khalil v. Yar’adua (2003) 16 NWLR (Pt. 847) 446; Manir Yakubu v. Ibrahim Tsauri; Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; that it is not the business of the court to perform surgical operation on the appellant’s brief in order to separate the chaff from the grain. To do this, contends learned SAN, would becloud the judgment of the court as it would have descended to the arena- see per Salami, J.C.A. in Ayalogu v. Agu (supra). Senior counsel urged us to strike out the entire appeal, there being no issue to sustain the grounds of appeal.
The appellant’s reply brief addressed the issues raised in the preliminary objection. It is the contention of the learned counsel for the appellant that all the issues raised in the grounds and particulars of the appeal were effectively raised before the learned members of the Election Tribunal who erred in setting aside the subpoena duces tecum at that stage. (Refers to pages 7, 11, & 14 lines 24, 12, 6 respectively of the records Counsel also cited pages 24 and 25 lines 14, 9-26 respectively of the ruling of the tribunal as showing the consideration of the said issues by the tribunal and its decisions thereon.
Counsel cites the decision of this court in the case of Justice Party v. INEC (2004) 12 NWLR (Pt.886) p. 140 where a similar objection was over-ruled. In the Justice Party case (supra) this court held, per Muhammed, J.C.A. at pp. 154-155, that where there has been substantial compliance with the relevant rule of court, the grounds as filed by the appellants should be sustained as competent.
We have perused the proceedings and find at pages 12 & 14 particularly that the issues raised in ground 11 and its particulars (a) & (b) were actually canvassed before the Tribunal.
The tribunal did not however make any pronouncement on this issue, it made no decision.
This court is not one of trial. Until a trial court has adjudicated on the merit of an action or an application filed before it, we cannot determine the matter, not being a court of first instance. (Ref per Oduyemi, J.C.A. in Chief Lambert Necha v. INEC and 1 Ors. (2001) 3 NWLR (Pt.699) p. 74 at 89) We accordingly hold that ground ii and its particulars (a) & (b) is incompetent and is hereby struck out.
On the competence of particulars (a) and (b) of ground iii, the learned counsel for the appellant relied on the decision of the Supreme Court in the case of Alhaji Salami O. Aderounmu v. Emmanuel Olajide Olowu (2000) 4 NWLR (Pt. 652) p. 253 at 265-266; Military Administrator, Benue State v. Ulegede (2001) 51 WRN at 15-16 also reported in (2001) FWLR (Pt.78) p. 1268 at 1283-1284; (2001) 17 NWLR (Pt. 741) 194.
The learned counsel quotes extensively, the decision of the Supreme Court per Ayoola, J.S.C. (Rtd.) (supra) and urges us to be guided by the principles and the current trend in adjudication as amply elucidated in the said decisions. The said decisions, submits counsel, show that the courts now aim at applying substantial justice as against undue reliance on the rules of technicality, which shuts out litigants from the court.
We agree with the submission of the learned counsel for the appellant and are properly guided by the pronouncement of the Supreme Court in the two cases cited (supra).
It is difficult, one must say, to discern how particulars (a) and (b) of ground iii of the appeal as formulated have occasioned a miscarriage of justice to the 1st respondent. (Refers Okonji v. Njokanma (1999) 14 NWLR (Pt.638) p. 250 at 268). The said particulars though inelegantly drafted, adequately convey the contentions of the appellant and sufficiently put the 1st respondent on notice of the issues to be determined on the appeal.
The cardinal consideration is that where the parties to an appeal and the court are not misled by the contents of a ground of appeal, complain about its form becomes a technicality which does not occasion a miscarriage of justice. Courts now pursue the cause of substantial justice as against reliance on rules of technicality. (Refer generally to City Engr. (Nig.) Ltd. v. NAA (1999) 11 NWLR (Pt.625) p. 76 at 89; Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) p. 355 at 386-387.
We find no justification in striking out the said particulars, which are accordingly hereby sustained.
The unique facts of this appeal are as follows:-
The constituted National Assembly/Governorship and Legislative Election Tribunal sitting at Calabar (Coram – Hon. Justice O. A. Boade, (Chairman) Hon. Justice 1. Hwande, Hon. Justice M.
L. Abimbola, Hon. Justice J. J. Jella) had, at the instance of the petitioner issued a subpoena duces tecum to the 1st respondent commanding him to produce his academic certificates as listed supra in this judgment. Hearing commenced and some witnesses who had also been subpoenaed at the instance of the petitioner testified. On the 16/03/04, the 1st respondent had filed on his behalf a motion to set aside the subpoena issued on him.
The motion was contested particularly by the petitioner who had a counter affidavit filed.
The grounds for the application as stated on page 3 of the small records are:-
“(i) The subpoenas have been applied for in utmost bad faith.
(ii) The subpoenas have been applied for and issued to embarrass or ridicule the 1st respondent.
(iii) This Tribunal on 25th February, 2004 dismissed an application brought by the petitioner to amend his petition to challenge or attack the educational qualifications of the 1st respondent and petitioner has appealed to the Court of Appeal against the said ruling.
(iv) The subpoenas have no relevance to the pleading and grounds of the petition adumbrated in the petitioner’s pleading.
(v) The subpoenas are vague.
(vi) The subpoenas constitute abuse of the processes of this Honourable Tribunal.
(vii) The Tribunal has no jurisdiction to entertain any issue relating to the contents and demands of the subpoenas.”
In a reserved ruling pronounced on the 19th March, 2004, the Tribunal preferred the submission of the learned SAN and accordingly set aside the subpoena earlier issued on the 1st respondent.
Aggrieved by the decision of the tribunal, the petitioner, hereinafter, referred to as the appellant, filed this appeal seeking a reversal of the decision of the Tribunal and a restoration of the subpoena issued on the 1st respondent.
A sole issue for determination in this appeal is formulated by the appellant upon the three grounds of appeal filed along with the particulars.
The 1st respondent also formulated a sole issue. We shall adopt the appellant’s issue in this judgment.
This issue is:-
“Whether, taking into consideration the state of the pleadings, the totality of the evidence led and the circumstances of the petition, the Election Tribunal was right in setting aside the subpoena duces tecum issued by it on the 1st respondent to produce his academic qualification/certifications?”
We have found supra that although the grounds of appeal and the issue are inelegantly drafted, they do raise substantial legal issues touching on the decision of the Tribunal and are therefore viable and sustainable. This court has the power and we hereby take the leverage of such to recast the issue for determination as follows:-
Whether taking into consideration the state and stage of the proceedings, the Election Tribunal was right in following the decision in R. v. Agwuna to declare as irrelevant and thereby setting aside the subpoena duces tecum issued on the 1st respondent to produce his academic qualification/certifications.
I must say that both parties have made a great issue of this appeal, which in our humble view is a very narrow issue of law, therefore the volumes of verbiage loaded into the submissions of particularly the learned counsel to the appellant are not necessary. We have therefore looked at the real issue and ferreted out all other irrelevances. The main stake is the order setting aside the subpoena. The appellant contends that the tribunal acted in bad faith and misdirected itself in law, when it relied on the decisions in R v. Agwuna 12 WACA 456 at 457; A.-G., Western Nigeria v. African Press Ltd. (1965) 1 All NLR 6 in setting aside the subpoena.
It is the contention of the appellant’s learned counsel that the reasoning of the tribunal that because issues were not joined on the said documents, they are not relevant is a misdirection in law. The learned counsel cites sections 3, 6, 7, 8, 9, (1),10 and 12 of the Evidence Act in support of his submission that the said documents are relevant. It was also the contention of counsel that since non of the pieces of evidence sought by the subpoena has been expressly declared or rendered inadmissible by either the Evidence Act or any other statute, the Tribunal was equally wrong from the stand point of section 5(a) of the Evidence Act, Cap. 112 of the LFN, 1990 to exclude them by declaring them irrelevant.
Citing the authority of Olukade v. Alade (1976) 1 All NLR 67; (1976) 2 SC. 183; Hassan v. Maiduguri Management Committee (1991) 8 NWLR (Pt.212) p. 738 at 750. Counsel argues that the Tribunal had rejected the admissibility of these documents even before they were produced. Also upon the authority of Oyediran v. Alebiosu 11 (1992) 6 NWLR (Pt. 249) p. 550; Monoprix (Nig.) Ltd. v. Okenwa (1995) 3 NWLR (Pt.383) p. 325 at 340 counsel submits that the Tribunal failed to take into consideration the age old principle of law that in civil proceedings for a document to be admissible, it must not only be pleaded, it must be as well relevant to the just determination of the suit.
It is further the assertion of the counsel that the tribunal was wrong in applying the ratio in Adeye v. Chief Adesanya (2001) 2 SCNJ 79; (2001) FWLR (Pt.415) 1847; (2001) 6 NNWLR (Pt. 708) 1, which in fact supports the position of the appellant. (Refers per Ognegbu, J.S.C. at 1856 paras. E – F).
While conceding the general principle of procedure that facts pleaded by one party and admitted by the other will generally need no further proof, counsel cites the case of Yashe v. Umar (2003) 45 E WRN 115 at 128-129; (2003) 13 NWLR (Pt. 838) 465 which says that there exist circumstances in which documents pleaded and admitted will need to be tendered in evidence in order for the court to be aware of their contents and to give them proper interpretation.
This, contends counsel, is to satisfy the court’s conscience as to the existence, condition and content of the said documents. The appellant seeks to do just that in his petition, declares the learned counsel (refers to per Ba’ aba, J.C.A. in Yashe case (supra).
It was finally the submission of the learned counsel that setting aside the subpoena was to gag the appellant and control what evidence he gives. The petitioner is however entitled to the opportunity to avail himself of all available evidence and witnesses to prove his case. (Refers to Savannah Bank v. Motor Parts Installation Enterprises Ltd. (1997) 3 NWLR (Pt.492) 209 at 218.
The learned senior counsel for the 1st respondent submitted that the subpoena was not sought bona fide and declared that the subpoena ‘at best was asking the 1st respondent to produce non-existing documents’ a mere ‘fishing expedition,’ (refers to the case of Rex v. Agwuna, African Press Ltd. (supra); Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at pp. 188’97189), the learned SAN concluded.
We find this submission curious for the simple reason that if the 1st respondent admitted the qualifications credited to him, there must be evidence to support such. With due respect to the learned senior counsel, the said documents cannot be said to be ‘non’-existent’ unless of course the admission and declaration of the qualifications of the 1st respondent is a farce.
It was further the submission of the senior counsel that by the nature and contents of the document, the tribunal lacks the jurisdiction to look into the documents covered by the subpoena (cites Jang v. Dariye (2003) 15 NWLR (Pt.843) p. 436 at 459. Again, we are unable to comprehend the basis of this argument.
It appears the court must look at the contents of a document vis-a-vis the facts pleaded to determine its relevance. This seems to be the theme of the Supreme Court decision in Agwuna (supra) that:-
“the relevance of evidence is for the court not the Minister to decide …”
The declaration of the learned senior counsel that the subpoena was sought in “Utmost bad faith”
is not supported by any reason in either the brief nor the oral submission of the learned SAN in court. We hold with due respect to the learned senior counsel that the said submission goes to no Issue.
No “bad faith” has been made out in support of the contention of the 1st respondent for setting aside the subpoena. In R v. Agwuna (supra), a criminal matter, it was held that the subpoena was not necessary to obtain any evidence relevant to the trial. It was therefore set aside. In the A.-G., Western Nigeria v. African Press Ltd. (supra) the subpoena was a wild one, it was therefore declared vague and applied for on frivolous grounds.
In the English case of Morgan v. Morgan (1877) 2 All ERS 515, the witness was not bound or concerned in the proceedings. He was subpoenaed for the purposes of obtaining evidence from him about his asset and testamentary intentions. The subpoena was set aside for the reason that such evidence sought to be obtained will amount to invasion of the witness’s personal right and private affairs.
None of these situations is similar to the facts of the instant case. The person subpoenaed here is a principal party. The documents sought are very clearly and distinctly identified. These are all documents, which are personal to the 1st respondent and are therefore under his personal control and custody.
By the provisions of section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria, a party is entitled to prepare for his case.
At the stage of preparation as in this case, investigation and discoveries are vital in building up the case of the litigant. Should the litigant desire such documents of his opponent, he must be allowed the benefit of such enquiry. Good circumspection dictates some allowance to the litigant at this preliminary stage. The reason is that the other party has a chance at the trial, to respond and query the relevance of such materials demanded and produced.
The crux of the decision of the trial Tribunal is borne out on page 28 of the records being part of the ruling of the Tribunal recorded in pages 21-30 of records of this particular appeal (referred to as the small record). The Tribunal wondered if there were any:
“real need for the petitioner to subpoena the 1st respondent to produce the documents”
To answer the question, the learned members of the Tribunal turned to paragraph 8(a)-(d) of the amended petition in which the various institutions the 1st respondent attended are listed with dates from the primary school to the Nigerian Law School up to his enrolment as a banister and solicitor of the Supreme Court of Nigeria in 1983. The Tribunal observed that the 1st respondent admitted those averments in their replies. The Tribunal concluded that it is trite law that admission in pleadings binds the party who made it and no further proof of the truth of the fact so admitted is required.
It cited the case of Adeye & Ors. v. Chief Adesanya & Ors. (2001) 2 SCNJ 79; (2001) 6 NWLR (Pt. 708) 1, above, in a nutshell is the basis of the decision of the Tribunal that the documents were not necessary and it therefore set aside the subpoena.
The 1st flaw apparent in the decision of the Tribunal is the fact that admissions are not conclusive proof of the matters admitted but they may operate as estoppel (refer Ojiegbe v. Okwaranyia (1962) 1 All NLR 605 at 607; (1962) 2 SCNLR 358.) By the provisions of section 132 of the Evidence Act (supra) documentary evidence prevails over any other matter as only the document itself will be admissible evidence.
Further, section 75 of the Evidence Act (supra) that the Tribunal seems to rely upon, though not cited, refers to the parties agreeing to admit, was there any such agreement in this matter? The petitioner made some depositions/declaration about the 1st respondent, which the 1st respondent admitted. There was no agreement per se. It is correct that by the rule of pleadings, facts admitted need not be proved. The court however reserves the discretion to allow or require proof other than by the prior admission/agreement of the parties. The discretion of the court is a power to be exercised judicially and judiciously. This then requires that the court in so exercising its discretion must be guided by the basic tenets of justice to prevail over the rules of technicalities (Refer Egolum v. Obasanjo supra).
This, in my humble opinion, is the basis of the discretion reposed in the court by section 75 of the Evidence Act; to require further proof. Indeed, the said section does not empower the court to dispense with further proof of the admitted facts, this is instructive.
Had the learned members of the Tribunal averted their minds to these areas of the law, they would have arrived at a different decision than the one they did.
The reason the tribunal struck down, by setting aside, the subpoena is the relevance of tendering the documents, which had already been admitted.
With due respect to the learned members of the tribunal, relevance in the circumstance is a matter of details which should arise only at the adduction of evidence. At that stage, the 1st respondent has the opportunity to prevent whatever mischief or injury he perceives the tendering of such documents would wrought to his case. Not before then.
The appellant/petitioner must not be shut out/short charged at the stage of collating materials for the prosecution of his petition, unless of course, he short charges himself.
Accordingly, the Tribunal was not, at that preliminary stage, seized of the relevant facts to decide at the time it did, that the documents sought were not relevant.
The current trend in judicial circle is the doing of substantial justice. Efforts must be geared towards upholding the rights of individuals without sacrificing the general interest. When there exists ample opportunity for the other party to raise further objections during the course of a proceeding, the courts must not rush into shutting out a party who seeks to haul in some materials he considers vital to his case at the very preliminary stage. The exception to this rule will be where the case is incurably defective and no judicial surgery can resuscitate it.(Refer Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6 at 26, Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt.55) p.179, Obimonure v. Erinosho (1966) 1 All NLR 250).
As the proceedings progress, objections can be raised through which the grains can be separated and the chaffs jettisoned for good and substantial judicious reasons.
Assuming the admission of the existence of these documents preclude their production, the petitioner should not be denied the right to a visual perception of the said documents.
In my humble opinion, the deposition/statements in paragraph 8(A-D) of the amended petition are no more than a repetition of the expected basic qualifications of the 1st respondent, which by law, qualifies him to stand election for the office of the Governor. A few additional qualifications, which are not required by the provision of section 117 of the Constitution merely go to enhance the credentials of the 1st respondent as presented by him to INEC.
The mere fact of the reproduction of the same by the petitioner in this petition should not preclude/estop the petitioner from desiring to have a visual perception of the certificates evidencing those declared qualifications (refer Barrister Boloukuromo Ugo v. Bolobowei lndiamaowei & 6 Ors. (1999) 13 NWLR (Pt.633) P. 152 at 160).
This procedure allows for comparison, which enables the inference to be drawn from the inspection and comparison of that which is declared, and what actually is. In the determination of the issues placed before it, the court has the inherent powers to draw legitimate inference arising from facts presented before it (refer Sodipo v. Leminkainen OY (1986) 1 NWLR (Pt.15) p. 220 at 224-5 per Karibi-Whyte, J.S.C. (Rtd).
In the special circumstance of an election matter being sui generis, it appears reasonable to hold that a party is not shut out at the inception of his case. He should be allowed to garner whatever materials he perceives requisite for the prosecution of his case. The Tribunal must not give the impression of siding with any party by appearing to shield such a party. The said documents could be used to impugn the evidence adduced and thereby radically affect the evidential weight/probative value ascribable to the case of the 1st respondent. This, the appellant is allowed to do. It is a contest.
It is our humble and considered view that the tribunal threw caution to the winds in deciding on the relevance of the documents at that preliminary stage of the proceedings.
I fail to see what injustice was occasioned by the issuance of the subpoena. The injustice to be suffered by the appellant by the setting aside of the subpoena is however visible and apparent; the party is being denied an opportunity to prosecute his case with the materials he deems relevant. While the setting aside of the subpoena was an act to protect the one party from “whatever”, its withdrawal constitutes a denial of an element of fair hearing, a constitutional and natural right which is more fundamental than merely shielding a party from a ‘perceived embarrassment’. It needs to be accentuated that the right to fair hearing is more than a personal right of the individual, it is a matter of public policy. The individual’s right to a fair hearing is non-negotiable, sacrosanct.
Why would a party feel harassed or embarrassed by the production of his certificates? I think the Tribunal acted in haste and thereby occasioned a miscarriage of justice to the appellant.
The learned members of the election Tribunal erred in setting aside the subpoena duces tecum at that stage.
The Justice of the case demands a reversal of the decision of the Tribunal and it is hereby so ordered.
The subpoena is restored and the respondent shall comply with same as ordered initially. Appeal is allowed. A cost of N5,000.00 is awarded to the appellant against the 1st respondent.

MUKHTAR, J.C.A.: I have read in advance the lead judgment delivered by my learned brother, Mensem, J.C.A. I agree with the reasoning in the judgment, and would like to make the following additions by way of emphasis in my contribution the notice of preliminary objection in particular being worthy of note. In the said objection, the learned Senior Advocate attacked grounds (ii) and (iii) of appeal in the notice of appeal. In respect of ground (ii) and its particulars (a) and (b), which the learned Senior Advocate postulated do not arise from the decision appealed against, I endorse his argument and also hold that the ground is incompetent and ought to be struck out. In this wise, I struck out the said ground (ii) of appeal, for the law is settled that a ground that is not competent must be struck out. See Ideh v. Onyejese (1997) 8 NWLR (Pt. 518) p. 610, Royal Exchange Assurance v. Aswani ile Ind. Ltd. (1991) 2 NWLR (Pt.176) p.639; R.S.C.E. v. Omubo (1992) 8 NWLR (Pt.260) p. 456. It therefore follows that the argument covering the incompetent ground that has been struck out shall be ignored. See Finnih v. Imade (1992) 1 NWLR (Pt.219) p. 511.
As for ground (iii) of appeal, the argument of the learned Senior Advocate that particulars (a) and (b) under the said ground is argumentative is valid, but then a careful perusal of the body of the ground itself is such that it does not need particulars as it is sufficient on its own. Authorities abound that a ground of law may have particulars of error incorporated in the main ground of appeal itself i.e. ground of appeal suffices without the provisions of particulars, when on reading the ground, the errors complained on is perceived and is understood.
The purpose of a ground of appeal is to give the other party ample notice of his complains on the judgment and the parts of which he is attacking. See the case of Koya v. UBA Ltd. (1997) 1 NWLR (Pt. 481) p. 251 where Ogundare, J.S.C. in treating such situation re-echoed the words of Lewis, J.S.C. in a case thus:
“The particulars, however, need not be separately set out, it may be embodied in the grounds itself provided the ground is framed to leave no one in doubt of the error being complained of”
As Lewis, J.S.C. put in N.J.P C. v. Thompson Organization (1969) 1 All NLR 138, 142:
“The whole purpose of grounds of appeal is to give notice to the other side of the case they have to meet in the appellate court…
In particular, we must reiterate what this court has said many times, that if errors of law are alleged, then the errors complained of must be fully set out in the grounds of appeal.”
I am guided by the above principle.
Now, coming back to the instant appeal, my view is that the said ground (iii) of appeal is sufficient for the purpose of the complain or error. I will for the purpose of clarification reproduce the ground hereunder. It reads:
“Learned Judges of the election Tribunal erred in law, when they misconstrued and misapplied the decision in Rex v. Agwuna (1949) 12 WACA 456 and African Press Ltd. v. Attorney General, Western Nigeria (1965) 1 All NLR 6 with regard to the powers of a court to set aside subpoena issued by it”.
Bearing the above discussion in mind, I believe that even if the particulars under the ground are struck out, the ground as it is, are competent, and should survive. That thus leaves the appeal with only two surviving grounds of appeal, i.e., grounds (1) and (3) in the notice of appeal. It is a fact that the appellant formulated a lone issue to cover all the grounds of appeal and canvassed arguments thereon, and I am not unaware of the submissions of the learned Senior Advocate that this court has no business sifting the chaff from the grain to wit in the present appeal picking and choosing the arguments relevant to the lone issue, in the course of treating the appeal. The fact however remains that the justice of the case demands that the brief of argument must be given the attention and consideration it requires. In the interest of justice and to avoid a miscarriage of justice of the appeal (considering its nature) this court must be concerned with the just determination of the appeal, and not be in the haste of throwing away the bath water and the baby, so to speak. The omissions in the cases of Engineer Nura Khalil v. Yar’adua (2003) 16 NWLR (Pt.847) p. 446; Ayalogu v. Agu (1998) 1 NWLR (Pt.532) p.129 relied upon by learned Senior Advocate are distinguishable from the instant case. I am of the film belief that there is need for substantial justice to be done here. In this wise, as the law empowers this court to formulate issues for determination, based on competent grounds of appeal, we are doing so in this appeal.
See N.E.P.A. v. Isieveore (1997) 7 NWLR (Pt. 511) p. 135. The notice of preliminary objection succeeds in part. I am in full agreement with the lead judgment and the fuller reasoning therein, that the appeal has merit and should be allowed. I abide by, the consequential orders made in the lead judgment.

BA’ ABA, J.C.A.: I read in draft the judgment just delivered by my learned brother, Dongban-Mensem, J.C.A. I agree with the reasoning contained therein and the conclusion arrived thereat. I propose to add few words of mine.
Since the background facts leading to this appeal has been clealy set out in the leading judgment, I do not consider it necessary to repeat them. I would like to start with the preliminary objection filed by the learned senior counsel for the appellant in accordance with Order 3 rule 15 of the rules of this court.
By the notice of the preliminary objection, the 1st prayer the court to strike out the entire notice and grounds of appeal dated 25/3/04 and filed on 26/3/04. The grounds of objection are:-
(i) Ground (ii) and particulars (a) and (b) thereunder do not arise from the decision appealed against.
(ii) Particulars (a) and (b) under ground (iii) are argumentative.
Learned senior counsel for the 1st respondent, Chief Wole Olanipekun, SAN, submitted that ground (ii) of the ground of appeal does not arise from the decision of the lower tribunal appealed against and referred the court to pages 21-30 and pages 31-32 of the record.
He stated that an appeal is against a decision of the lower court and a challenge to the validity of that decision. Relying on Sarah v. Kotoye (1997) 3 N.S.C.C. 331 at 355; (1992) 9 NWLR (Pt. 264) 156, Oba v. Egberongbe (1999) 8 NWLR (Pt.615) 485 at 489 and Igwuegbe v. Ezuma (1999) 6 NWLR (Pt.606) 228 at 234, he further submitted that an appeal is always against the ratio of a lower court decision and can never be at large.
He argued that particulars (a) and (b) subscribed under ground (iii) are argumentative. See Jamiyu Aliyu v. Aturu (1999) 7 NWLR (Pt.612) 536; Guda v. Kitta (1999) 12 NWLR (Pt.629) 21 at 39.
Learned senior counsel concluded that a fortiori, the entire notice of appeal and the brief of argument should be struck out as it would be difficult to start the expunction or exercising of arguments in support of the remaining grounds of appeal from argument in support of incompetent ground of appeal particularly since the time issue formulated cuts across both the competent and the incompetent ground. It is further submitted that it is not the business of the court to start sifting the chaff from its grains by performing a surgical operation on the appellant’s brief. That doing so may involve the court in descending to arena and dust arising therefrom may becloud its judgment, citing Engr. Nura Khalil v. Yar’adua (2003) 16 NWLR (Pt.847) 446; Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 in support of his submission.
In the appellant’s reply brief dated 14/10/04, filed on 4/11/04 deemed properly filed and served on 8/11/04, learned counsel for the appellant, Mba E. Ukweni, Esq in his response, stated that page 32 of the record shows clearly that the ground of appeal is complaining that the setting aside of the subpoena by the election petition interfered with petitioner/appellant’s right to fair hearing because the order prevented him from calling a witness of his choice and precluded him from putting in evidence/relevant documents in proof of his case.
He contended that the appellant’s ground of appeal number (ii) is a direct challenge to the validity of those reasoning/ratio referred. Learned counsel for respondent argued that all the authorities cited by the learned senior counsel cannot avail the 1st respondent as they do not apply and referred to the case of Justice Party v. INEC (2004) 12 NWLR (Pt.886) 148 at 154 – 155. He urged the court to hold that the complaints in ground (ii) of the appellant’s notice of appeal contained matters that have occurred in the proceedings which gave rise to this appeal as a result it is a competent ground of appeal.
On the second ground of the 1st respondent’s objection, it was submitted by the counsel to the appellant that the objection that particulars (a) and (b) of ground (iii) of the notice of appeal are argumentative is totally misconceived. Pointing out that these types of objections are no longer tenable in our law as their usefulness is spent. Learned counsel referred the court to the case of Alh. Salami O. Aderounmu v. Emmanuel Olajide Olowu (2000) 4 NWLR (Pt. 652) 253 at 265 ’97 266. In conclusion learned counsel for the appellant urged the court to overrule the objection.
A ground of appeal ought to relate to the judgment appealed against and be a challenge to the validity of the ratio of the decision. See Degi v. Francis (1999) 3 NWLR (Pt.596) 576. It is the law that a ground of appeal must stem from the ratio decidendi of a judgment and not on any extraneous matter nor obiter dictum of the court. See Babalola v. The State (1989) 4 NWLR (PUI5) 264, 294; Chief G. O. Obatoyinbo v. E. Tubola Oshatoba (1996) 5 NWLR (Pt.450) 531, 549; Nnanna v. Onyenakuche (2000) 15 NWLR (Pt. 689) 92.
At page 30 of the ruling, the Tribunal held:
“In light of the foregoing we are of the strong view covered by the subpoena are no longer relevant since the parties did not join issues on them. The N.Y.S.C. certificate of exemption on which issue was joined has already been admitted in evidence. The subpoena dated 21st January, 2004 served on the 1st respondent is no longer relevant and is set aside.”
With the greatest respects to the learned counsel for the appellant, I am unable to agree with him that the issue of fair hearing or preventing the appellant as petitioner from calling a witness of his choice arose and was decided upon by the Tribunal while hearing the application to set aside the subpoena. Consequently, I hold that ground of appeal number (ii) of the notice of appeal is neither related to the ruling nor arose from the ruling.
That being the case, ground of appeal number (ii) in my view is incompetent and must be struck out. Ground of appeal number (ii) is therefore struck out. It cannot be disputed that the lone issue was formulated from the three grounds of appeal contained on the notice of appeal dated 6/4/04.
What is the effect of formulating an issue from both competent and incompetent ground of appeal? An issue can only be distilled from a competent ground of appeal. See Globe Fishing Industries v. Coker (1990) 7 NWLR (Pt. 162) 265 at 282. It is the law that issue for determination formulated from incompetent ground of appeal must be struck out. Even before considering the validity of ground (iii) of the notice of appeal, I hold that the sole issue formulated from both competent and incompetent ground is liable to be struck out. It was held in Globe (supra) that issues arising from grounds 5, 9 and 15 which are without blemish have been argued along with infested grounds 4 and 16 hence, they have to suffer the same fate since it is not the duty of the court to perform a surgical or judicial operation on argument canvassed in respect of the three grounds of appeal by separating those in respect of grounds 16 from the other two grounds. It was further held in Globe (supra) that apart from this technical aspect, it is equally physically impossible to apportion the submission or argument to the grounds of appeal which are related to issues (e) and (h) in the appellant’s brief. The situation in the instant appeal is exactly the same as that in Globe (supra) consequently the lone issue being incompetent is hereby struck out.
However, ground of appeal number (i) of the notice of appeal survived that attack and in my view ground of appeal number (iii) which has its particulars contained in the ground in my view is a competent ground of appeal. See Atuyeye v. Ashamu (1987) 1 SCNJ 72; (1987) 1 NWLR (Pt. 49) 267.
As it is while I agree that the appellant has no valid issue, he still has two competent grounds of appeal on the notice of appeal remaining.
Since this court is empowered to formulate an issue where necessary, I intend to adopt the issue formulated by the learned senior counsel for the 1st respondent which I believe he formulated from a competent ground of appeal.
The Court of Appeal is at liberty and possesses the jurisdiction to modify or reject all or any of the issues formulated by the parties and frame its issue or, to reframe the issues if, in its view such issue will not lead to a proper determination of the appeal. However, the issues framed whether by the parties or by the court, must at all times be related to the ground of appeal filed. See Sha (Jnr.) v. Kwan (2000) 8 NWLR (Pt.670) 685 at 700; Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373 at 422; Momodu v. Momoh (1991) 1 NWLR (Pt.169) 608 at 621; Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130 at 157, John Bankole & Ors. v. Mojidi Pelu & Ors. (1991) 8 NWLR (Pt.211) 523 at 537; Okon v. Ekanem (2002) 15 NWLR (Pt.789) 106 at 133. Since this court as an appellate court possesses the power to frame and reframe any or all issues, in the exercise of that power, relying on grounds of appeal numbers (i) and (iii) of the notice of appeal, I adopt issue formulated by the learned senior counsel as mine. It reads:-
“Whether upon a consideration of the state of petition and proceeding before it, the Tribunal was not right in setting aside the subpoena duces tecum dated 21/1/2004 and issued on the 1st respondent – all the ground of appeal.”
It should be emphasized that one of the welcome changes that have taken place in our courts is the shift from technical justice to substantial justice. See Salami v. Bunginimi (1998) 9 NWLR (Pt.565) 235.
The arguments of the learned counsel for the appellant and that of the learned senior counsel for the 1st respondent are diametrically opposite to each other. While learned counsel for the appellant is of the view that the Tribunal was wrong in setting aside the subpoena earlier issued on his application, the learned senior counsel for the 1st respondent on the other hand, is of the strong view that the Tribunal was perfectly right in setting aside the subpoena having regard to the nature of the appellant’s/petitioner’s petition. In particular, having regard to the refusal of the Tribunal to grant the amendment sought by the appellant which would have introduced new issues in the petition.
In African Press Ltd. & Ayo Ojewunmi v. Attorney General, Western Nigeria (1965) 1 All NLR 12 at 160, 17B, it was held that where a subpoena is applied for on a frivolous ground, it may be set aside by the court on a motion brought for that purpose as it was done in R. v. Agwuna (1949) 12 WACA 456, the same applies to a subpoena which is bad for vagueness.
A person served with a subpoena has the right to apply to the court to set it aside on the ground that the subpoena is not bona fide required for the purpose of obtaining evidence that can be relevant and the court on application will interfere where it is satisfied that its process is being used for indirect or improper objects. See Rex v. Agwuna (Italics mine).
In the instant appeal, it cannot be said that the subpoena is vague. Having read the thirteen paragraphs affidavit in support of the application, I was unable to find any paragraph of the affidavit relating to improper motive or object alleged against the appellant who applied for the subpoena.
It appears to me that the main reason for setting aside the subpoena was that the documents are not relevant. It cannot be disputed that at the time of granting the appellant’s application for issuance of the subpoena, all the necessary facts were available when the Tribunal granted the appellant/petitioner’s application.
Taking into consideration the popular saying that justice must not only be done but must be seen to have been done, if the tribunal had refused the appellant’s application at the first instance, it would have been an entirely different matter. But having granted the application only to turn back and set the subpoena aside on ground of relevance at that stage, I am inclined to agree that the setting aside of the subpoena at that stage does not appear to me to have been properly done.
For these and other fuller reasons contained in the leading judgment, I, too allow the appeal. I abide by the consequential orders contained in the leading judgment including that of costs.

M. D. MUHAMMAD, J.C.A.: I have read before now the lead judgment just read by my learned brother Dongban-Mensen, J.C.A., with whose reasoning and conclusion I entirely agree. All the same I make few remarks in my own words.
A notice of preliminary objection pursuant to Order 3 rule 15 of the Court of Appeal rules has been given by the 1st respondent. The objection pertains grounds 1 and 2 of the grounds of appeal in the notice of the instant appeal. The court was moved by counsel who had included his arguments regarding the objection in 1st respondent’s brief. Counsel also offered oral amplification of these arguments. It is contended that appellant’s ground 2 does not arise from the decision being appealed against. Learned appellant’s counsel submits further that because particulars (a) and (b) under appellant’s 3rd ground of appeal are argumentative the ground be discountenanced. Counsel relies on the decisions in Saraki v. Kotoye (1997) 3 NSCC 331; (1992) 9 NWLR (Pt. 264) 156, Aliyu v. Ataru (1999) 7 NWLR (Pt.612) 536; Ayalogu v. Agu (1998) 1 NWLR (Pt.532) 129 among others to urge that the two grounds and the appeal be struck out.
I am unable to agree with respondent’s counsel for the very reasons relied upon by the appellant at page 3 of his brief particularly those regarding his 3rd ground of appeal. I maintain the stance I took in Justice Party v. INEC (2004) 12 NWLR (P.886) 140. In assessing all the ground of appeal in the instant matter, I am satisfied that the complaints the grounds raise are in respect of matters that occurred in the proceedings which gave rise to this appeal. An examination of the record of appeal justifies this conclusion. The most important point is that respondent cannot be said to be misled as to what the appellant is complaining about in the three grounds. Even where the two grounds respondent attacked in the instant case are jettisoned, a ground of appeal persists on which the anchorage of the appeal endures. Appellant’s grouse in all or the surviving ground of appeal is about the setting aside by the Tribunal of the subpoena duces tecum dated 21st January, 2004 issued on the 1st respondent. I adjudge the appeal competent and shall consider it on the merits.
The Tribunal had not set aside the subpoena by its wrongful application of a procedure commended by the decisions in Rex v. Agwuna 12 WACA 456 at 457 and A.-G., Western Nigeria v. African Press Ind. Ltd. (1965) 1 All NLR 6 at 16. Learned counsel to the respondent has enriched the chain of authorities by adding the decision in Bayo v. Njidda (2004) 8 NWLR (Pt.876) 544 and urged us to uphold the decision of the tribunal.
Appellant’s main grouse is that the decision, subsequently the documents asked for by the issuance of the subpoena … set aside is premature and unjust. I agree with him.
In addition to the fuller reasons outlined in the lead judgment, it is my considered view that the tribunal’s decision cannot be lightly treated. It has serious implications for the administration of justice than is readily deducible.
The Electoral Act in paragraph 50 of the 1st Schedule commends an election petition tribunal to adopt only such procedure which is as nearly as possible and similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction and with such modification as may be necessary to render it applicable having regard to the provisions of the Electoral Act.
The decision appealed against cannot be said to have evolved from the Tribunal’s justified resort to a procedure such as the one envisaged and provided for by paragraph 50 of the 1st Schedule to the Electoral Act. The two decisions relied upon by the Tribunal are not decisions that have evolved in the course of proceedings in election petitions. It is procedure that has not been provided for by either the substantive or procedural legislations under reference in the instant case.
By S. 36 of 1999 Constitution, the appellant’s civil right and obligation can only be lawfully determined if he is given fair hearing by the Tribunal. It may be argued that appellant had been heard before the Tribunal’s decision to set aside the subpoena was arrived at. The argument will be missing the genuine point here.
The truth is that the appellant’s right to present his petition in the manner he chose including the sequence of the witnesses he was to call and the timing of tendering the evidence he was to rely on, had been, by adjudging the evidence irrelevant at that premature point, compromised. Such a decision, discretionary as it is, which results in injustice is perverse. Most importantly, the exercise of the tribunal’s discretion has unlawfully circumscribed appellant’s constitutional right as well. The decision must, having negated the entire proceedings it featured in, be reviewed.
This is an election matter, justice must flow without the least interference by the court. If the court must interfere, certainly not through a novel and strange procedure that does not clearly seem to have been provided for by the law. An unjust interference such as the one occasioned by the tribunal must be set aside. I so do.
For the foregoing and more so the fuller reasons contained in the lead judgment, I also allow the appeal. I abide by the consequential orders reflected in the lead judgment including the one on costs.

OMOKRI, J.C.A.: I have read in advance the lead judgment delivered by my learned brother, Dongban-Mensem, J.C.A. I agree with the reasoning in the judgment and would like to make the following additions by way of emphasis.
On the preliminary objection raised, I feel obliged to reproduce the ground of appeal affected shorn of the particulars and it is as follows:-
“Ground two: Error in law
The learned Judges of the election Tribunal erred in law when they prevented the petitioner/appellant from calling a witness of his choice and determining at the stage of the proceedings what evidence was relevant to the proceedings which determination precluded him from putting in evidence relevant documents in proof of his case thereby interfering with his right to a fair trial.”
After a careful perusal of pages 21-30 of the record of the Tribunal, otherwise the ruling and ground 2 reproduced above, I am inclined to agree with Chief Wole Olanipekun, SAN, that the said ground of appeal does not arise from the decision of the Tribunal appealed against. It is well settled that an appeal is against the decision of a lower court and a challenge to the validity of that decision. There is no such thing as an appeal at large. See Sarah v. Kotoye (1997) 3 NSCC 331 at 355; (1992) 9 NWLR (Pt. 264) 156; Oba v. Egberongbe (1999) 8 NWLR (Pt.615) 485 at 489 and Orugbo v. Una (2002) 16 NWLR (Pt.792) 175 at 206-207. View from this backdrop it is inescapable to conclude that ground 2 is not grounded by the record of proceedings of the Tribunal. I do not think that Order 3 rule 2(1) to (4) of the Court of Appeal Rules can save the ground of appeal. The issue here is not as to the form in which a ground of appeal must be framed, it is whether the ground is derivable from the decision of the Tribunal. A ground of appeal at large must be struck out. Accordingly, ground 2 is hereby struck together with all the particulars. Likewise issues for determination covering ground 2 must be struck out and should be discountenanced as they have no foundation to stand on. See Ozobia v. Anah (1999) 5 NWLR (Pt. 601) page 1.
In respect of particulars (a) and (b) under ground (iv), the objection is that they are argumentative. Having examined the said particulars, I agree with Chief Olanipekun that they are indeed argumentative. But I observed that even if particulars (a) and (b) are struck out ground 3 can sti1l subsist as it is. In any case particulars (c) is not argumentative so it is good in law.
Moreover, in view of the recent decisions of this court in many cases, I am satisfied that the current trend is that the grounds of appeal with particulars which convey a party’s complaint and does not occasion miscarriage of justice wi1l be allowed even though the grounds with the particulars are argumentative and narrative.
I shall refer to the case of Military Administrator, Benue State v. Ulegede (2001) 51 WRN at 15 -16; (2001) 17 NWLR (Pt. 741) 194, where Ayoola, J.S.C., restated the law thus:-
“The remaining issues can be disposed of shortly. The first two of these relate to the ground of appeal in the court below and what that court should have done in regard to those grounds which it found to have contained narrative or argumentative particulars and those in which he struck out the particulars. It is not necessary to set out those grounds since the issues concerning them can be disposed of without much ado; were the parties to an appeal and the court are not misled by the contents of a ground of appeal, complain about its form becomes a technicality which does not occasion a miscarriage of justice and which ill-becomes a counsel to bring up at this level of appeal.”
Although in this appeal, counsel for the appellant argued that the Court of Appeal should have struck out the grounds that contained particulars that were argumentative and narrative, and those in which it has struck out the particulars, it has not been suggested that retaining those grounds had occasioned a miscarriage of justice. The appellant’s counsel must have overlooked the change in our appellate system by the introduction of the brief system. Appeals are now argued on issues distilled from the grounds of appeal and not on the grounds of appeal themselves. It follows that where the complaint is not that the issues do not flow from the grounds of appeal, any complaint about the form of the ground of appeal is inconsequential.
This court is bound by the decision and it speaks for itself. In the light of the above, the cases of Aliyu v. Aturu (1999) 7 NWLR (Pt.612) 536; Guda v. Kitta (1999) 12 NWLR (Pt.629) 21 which were decided 2 years before the case cited above cannot stand now. The 1st respondent has not complained that he was misled by the content of the ground or that it has occasioned injustice to him. The objection in this respect is inconsequential and of no moment. This now brings me to the main issue in this appeal. There is no doubt that following the decisions in Rex v. Agwuna (1949) 12 WACA 455 and African Press Ltd. v. Attorney-General of Western Nigeria (1965) 1 All NLR 6, and court that issued a subpoena has the authority or jurisdiction or power to set it aside. Presently the crucial fact in issue is as formulated by the parties; whether upon a consideration of the state of the pleadings or petition and proceedings before it the Tribunal was right or not right in setting aside the subpoena duces tecum dated 21/1/2004 and issued on the 1st respondent.
The content of the subpoena has to be reproduced in extenso, in the lead judgment.
The Tribunal in setting aside the subpoena duces tecum held that: –
“In the light of the foregoing we are of the strong view that all the documents covered by the subpoena are no longer relevant since the parties did not join issues on them. The NYSC certificate of exemption on which issue was joined had already been admitted in evidence. The subpoena dated 21/1/2004 served on the 1st respondent is no longer relevant and is hereby set aside.”
The question now is this, is it correct that all the documents covered by the subpoena are no longer relevant? The substance of ground 7(i) of the petition deals clearly with the disqualification were supplied under paragraph 8(a)’97(d) of the petition. It is discernible that the issue at stake regarding the disqualification of the 1st respondent is that he did not do the mandatory one year NYSC programme. The eleven documents listed in the subpoena have great bearing and nexus with the 1st respondent’s participation in the NYSC programme. It is a fact that it is not every Dick, Tom and Harry that is eligible to serve in the NYSC programme. I agree with Mr. Ukweni that, to become eligible to serve in the mandatory NYSC programme, the 1st respondent must be a qualified graduate.
To be a graduate he must be admitted into a course of study in a university. To be admitted into a university, he must have attended and qualified from a secondary school and met the requirements for such admission. To be admitted into a secondary school he must have attended a primary school and finished successfully. There is no gain-saying that the chain must be systematic and sequential. All these facts are interconnected and they are necessary to explain and introduce the fact of non-service in the mandatory NYSC scheme and therefore they are relevant facts.
Furthermore, the documents listed in the subpoena were duly pleaded or facts leading to them were pleaded. See paragraph 8(a)(d) of the amendment petition.
On the issue of the Master of Laws Degree from the university of Pennsylvania, United States of America, the Tribunal came to the following conclusion at page 29 lines 12 – 15 thus:-
“It is not part of the averment of the petition that the 1st respondent attended the University of Pennsylvania. It was the 1st respondent who pleaded it as a result of which the petitioner mentioned it is his reply to the reply…”
That finding is totally erroneous and nothing can be further from the truth. Paragraph 8(c) of the amended petition clearly stated thus:-
“(c) Between 1979 to 1982, 1st respondent had his tertiary education at Ahmadu Bello University, Zaria. He attended the Nigerian Law School from 1982 to 1983 and the University of Pennsylvania from 1983-1984.”
It is clear from the above that the Tribunal was clearly in error in its finding as aforesaid. On the contrary it is part of the averment of the petitioner under paragraph 8(c) of the amended petition that the 1st respondent attended the University of Pennsylvania. Therefore the certificate is relevant.
Now, if the 1st respondent attended University Pennsylvania then he must have traveled to USA to study. This makes his international passport relevant.
I have gone through the cases of R. v. Agwuna (supra); African Press Ltd. v. A.-G., Western Nigeria (supra). In the former the subpoena was set aside on the ground that it is bad for vagueness and in the later case the subpoena was set aside on the ground that it was frivolous. The subpoena issued on 21/1/04 on the 1st respondent and reproduced above is neither vague nor frivolous. Having arrived at this conclusion it follows that the cases referred to above are clearly distinguishable and therefore inapplicable to the facts of this appeal.
The subpoena in focus in this appeal, clearly, distinctly, unambiguously set out the documents required to be produced and it leaves no one in no doubt as to what documents are to be produced.
In the circumstances, it cannot be said that the subpoena was issued mala fide or in bad faith. Learned SAN also contended that the subpoena itself has become completely irrelevant and meant to annoy and irritate the 1st respondent. With due respect to the learned SAN, the subpoena is very relevant and it was not meant to annoy and irritate the 1st respondent. To command a party to a suit to produce documents which are in his possession cannot be an embarrassment and cannot be irritative or calculated to annoy him. It is not so much trouble to produce documents you claim to have in your possession.
Moreover, I am satisfied that the documents listed in the subpoena are relevant for the purpose of ascertaining their existence. In Yashe v. Umar (2003) 45 WRN 115 at 120-129; (2003) 13 NWLR (Pt. 838) 465, this court held thus:-
“It is an elementary principle of procedure that facts pleaded by one party and admitted by the other will generally need no further proof. See Uwegba v. A.-G., Bendel State (1986) 1 NWLR (Pt.16) 303; Ediokeo Lo & Co. Ltd. v. Vohenhen (1991) 7 NWLR (Pt. 258) 511.
But there are circumstances in which the documents are pleaded and although admitted by the other party will need to be tendered in evidence in order for the court to be aware of their contents and to give them proper interpretation.”
The above decision is directly on the point in contention in this appeal. Having regard to the facts and circumstances of this appeal which emanated from an election petition this is one of those circumstances in which the documents pleaded and admitted still need to be tendered in evidence in order for the court to be aware of their contents and to give them proper interpretation. This will also help to clear any lingering doubt as to the qualification of the 1st respondent once and for all. Moreover, a court or Tribunal should not be seen to bar a party from conducting his case as he wants. The petitioner is the master of his petition and he should be allowed to conduct or prosecute his petition as best as he can. See Maduekwe v. Okoroafor (1992) 9 NWLR (Pt.263) 69 at 73. The Tribunal is not to put, and should not be seen to put any impediments, hurdles, barriers, obstructions or obstacles in the petitioner’s quest for justice. Let the evidence be redundant or superfluous or spent, I know of no law that prevents a party from conducting or presenting his case the way he thinks best. He should be given uninhibited and unfettered access to fair hearing guaranteed under section 36(1) of the 1999 Constitution. See Famakinwa v. University of lbadan (1992) 7 NWLR (Pt.255) 608 at 620. No court or Tribunal can do substantial justice in any case when all the relevant facts and documents available are not placed before it. See F.B.N. Plc. v. May Medical Clinics and Diagnostic Centre Ltd. (2001) FWLR (Pt.48) 1343 at 1384; (2001) 9 NWLR (Pt. 717) 28.
By setting aside the subpoena and declaring the documents required as irrelevant to the proceedings, the Tribunal has barred the petitioner from adducing evidence on those facts and has by its decision rejected the admissibility of the documents listed in the subpoena even before they were produced before it. This is palpably wrong.
Usually, counsel takes objections to the admissibility of any piece of evidence when it is produced in court and not before. In my view, the interest of justice would be better served if the Tribunal had allowed the 1st respondent to obey the subpoena. After all the Tribunal at the conclusion of the hearing of the petition will have ample opportunity and unfettered right to determine whether the documents subpoenaed are relevant or not. Setting aside the subpoena at the stage the Tribunal did might send the wrong signal. Election petitions are very sensitive and of great public interest. They are by their nature peculiar from other proceedings and are very important from point of view of public policy. In a situation where very serious allegations are made by the petitioner, to shut him up in any manner does much harm to the cause of justice. In Nwole v. Iwuagwu & Ors. (2004) 1 EPR 682 at 702; (2004) 15 NWLR (Pt. 895) 61 it was held that:-
“The above is the more reason why greater care and pain must be taken in the handling of election petitions with a view to doing substantial justice to both parties regardless of the technical hitches that may abound in the couching or preparation of the petition. That saves time and costs.”
But for this appeal, the Tribunal if it had exercised its discretion judiciously and judicially by allowing the documents, subpoenaed to be tendered, would have concluded the hearing of the petition long ago. This is a petition that was filed since 19/5/03 up till now it has not been concluded. Let there be an end to the petition.
It is for the above reasons that I come to the conclusion that 420 Nigerian Weekly Law Reports 9 January 2006 (Omokri, J.C.A.), there is merit in this appeal and it ought to be allowed. The lone issue for determination is hereby resolved in favour of the appellant and against the 1st respondent.
I allow the appeal and set aside the order of the Election Petition Tribunal made on the 19th day of March, 2004, setting aside the subpoena duces tecum issued on the 1st respondent to produce the documents therein listed except the NYSC exemption certificate which is already in evidence as exhibit A11. I abide by the order for costs in the lead judgment.