AUWAL DAHIRU SALE V. HON. AUWALU ABDU & ORS (2011)

AUWAL DAHIRU SALE V. HON. AUWALU ABDU & ORS

(2011)LCN/4757(CA)

In The Court of Appeal of Nigeria

On Monday, the 26th day of September, 2011

CA/J/EPT/HR/160/2011

RATIO

GROUND OF APPEAL: THE PURPOSE OF A GROUND OF APPEAL

…the sole purpose of a ground of appeal [such as the ground of appeal under attack in this appeal] is to notify the respondent of the case he or it would be meeting in the appellate court, Diamond Bank Ltd v P.I.C. Ltd (2010) All FWLR (pt 512) 1098, 1116-117. Worse still, the said objectors would, equally, appear to be oblivious of the fact that the appellant’s intention in setting out the above particulars was to highlight his complaint against the ruling which he appealed against. Simply put, the particulars are his specification of the tribunal’s error in order to make it clear how he would canvass his complaint in an attempt to demonstrate the flow of the tribunal’s reasoning in that aspect of the ruling, Osasona v Oba A. Ajayi and Ors (2004) All FWLR (Pt 216) 443; (2004) 5 SCNJ 82; Diamond Bank Ltd v P. T. C. Ltd (supra) 1116. PER CLARA BATA OGUNBIYI, J.C.A

PRACTICE DIRECTION: WHETHER OBEDIENCE TO THE PRACTICE DIRECTIONS SHOULD BE FOLLOWED SLAVISHLY

In the first place, although Practice Directions have the force of law and parties must adhere to them, Nwankwo v Yar Adua (2010) 12 NWLR (pt 1209) 518, 563, there is an important caveat to this general proposition: obedience to these rules must not be slavish to the point of overriding the justice of the case. It cannot be otherwise for the court users have only one barometer for gauging the pulse of litigation. It comes to the simple question whether, at the end of the litigation process, justice has been done to the parties, Abubarkar and Ors v Yar’Adua and Ors (2008) 4 NWLR (pt 1078) 465, 511 paragraph E-F; Chime v Onyia (2009) 2 NWLR (Pt. 1124) 1, 52. PER CLARA BATA OGUNBIYI, J.C.A

PRACTICE DIRECTION: PURPOSE FOR ENACTING THE PRACTICE DIRECTIONS

it must always be borne in mind that Practice Directions are adjunct to the Rules of Court. The raison d’etre for enacting them is to facilitate the philosophical objective of making the administration of justice less esoteric, on the one hand; and the facilitation of the disposal of matters with ease and dispatch, on the other hand. In short, they are aimed at making the administration of justice more user-friendly. It would, therefore, be counter-productive, indeed, preposterous to convert them into expedient implements for slaughtering the inveterate principles of justice on the altar of speed, Chime v Ezea (2009) 2 NWLR (pt 1125) 253, 358; UNILAG v Aigoro (1984) NSCC 755; Ikem v Asioweren (2010) 1 NWLR (Pt.1174) 147, 171-172. Above all, as adjuncts of rules of court, it would, almost certainly, be repugnant to good sense and logical reasoning if they were allowed to override the provisions of substantive law, Audu v INEC (No 2) (2010) 13 NWLR (pt 1212) 456, 512; Chime v Ezea (2009) 2 NWLR (pt 1125) 203, 358. PER CLARA BATA OGUNBIYI, J.C.A

COMPETENCE OF WITNESS: STATUTORY PROVISION GOVERNING THE COMPETENCE OF A WITNESS TO TESTIFY

JUSTICES

CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

AUWAL DAHIRU SALE Appellant(s)

AND

1. HON. AUWALU ABDU
2. PEOPLES’ DEMOCRATIC PARTY (PDP)
3. CONGRESS FOR PROGRESSIVE CHANGE (CPC)
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)

CLARA BATA OGUNBIYI, J.C.A (Delivering the Leading Judgment): This appeal is against a ruling of the National and State Houses of Assembly Election Petition Tribunal, Bauchi State (hereinafter simply referred to as “the tribunal”) which was delivered on July 26, 2011. The first and second petitioners before the tribunal [who are now first and second respondents in this appeal] had filed a petition at the tribunal. In the said petition, they challenged the return of the appellant as the Member of the House of Representatives in the Katagun Federal Constituency of Bauchi State in the general elections held in April 2011 elections which were conducted by the fourth respondent.
On July 26, 2011, when the PW3 was about to adopt his witnesses statement on oath, the appellant’s counsel raised an objection. He contended that the use of the figures “002”, in identifying the witness instead of his initials, was in breach of paragraph 1 of the Practice Directions. Instructively, the fifth – thirty ninth witnesses, also, were identified with figures in the List of witnesses and statement on oath. The tribunal’s ruling dismissing the said objection prompted this appeal. The appellant distilled two issues from his Notice of Appeal. These issues were couched thus:
1. Whether upon a proper construction of the provisions of paragraph 1 of the Election Tribunal and Court practice Directions, 2011, the use of figures to identify witnesses, is within its contemplation
2. Whether a petitioner who does not comply with the provisions of paragraph 1 of the Election Tribunal and Court Practice Directions, 2011, will be allowed to call a witness on the premise that the impugned witness was not misled and the respondents will not suffer any injury.
On their part, the first and second respondents identified the following two issues as sufficient for the determination of this appeal. These issues are:
1. Whether the failure of the petitioner to identify some of his witnesses’ statement on oath with their initials is sufficient to invalidate the evidence of such witnesses and deny the tribunal the benefit of taking evidence from such competent witnesses.
2. Whether it is every non-compliance with the Election Tribunal and Court Practice Direction 2011 that can vitiate the effectual trial of an election petition.
We have, carefully, perused the Grounds of Appeal and we take the humble view that the issues, which the first and second respondents formulated, are more cogent having regard to their piquancy. We shall, therefore, adopt them in the determination of this appeal. We shall deal with them seriatim. Before then, however, we are under obligation to dispose of the Preliminary Objection of the first and second respondents to the competence of Ground two in the Notice of Appeal.
PRELIMINARY OBJECTION
In their brief of argument, which as shown above, was deemed properly filed and served on September 20, 2011, the first and second respondents raised an objection to the competence of Ground two in the Notice of Appeal on the premise that, since it did not arise from the ruling appealed against, it was liable to be struck out.
Pointing to page 479 of the record, it was contended that for a ground of appeal to be competent, it must be an attack on the ratio decidendi of the decision appealed against, M. B. Nig, Plc v Nwohodo (2005) 40 WRN 1, 40; West African Cotton Ltd v Haruna (2008) 13 WRN 130, 142. Counsel urged the court to strike out the said Ground two for being incompetent.
The appellant responded to the issue raised in the preliminary objection in his reply brief which was deemed properly filed and served on September 20, 2011. It was contended on his behalf that a careful reading of the particulars under Ground two would reveal that the ratio decidendi of the said ruling was the tribunal’s conclusion that the appellant would not suffer any injury as a result of the use of the figures ”002” to identify the witnesses and that the witness was not misled. It was observed that, from the said ruling, the issue of the witness not being misled and or the appellant not suffering any injury as a result of the use of the figures to identify the witness had arisen.
Thus, the issue or complaint which the appellant raised had satisfied the requirements of the definition of a ground of appeal, Ajuwon v. Fashina (2008) 6 WRN 89. Furthermore, the appellant took the view that the gravamen of his complaint in Ground two could be appreciated when read together with the particulars. The particulars under the said ground had, succinctly, captured his grouse against the said ruling of the tribunal, Obun v Ebu (2007) 6 WRN 105, 137. Relying on Gambari v Mohmud (2008) 7 WRN 76, 102-103, the appellant maintained that for a ground of appeal to be competent, it must be connected with the controversy between the parties and must stem from the decision of the court below. In effect, when the ground of appeal is borne out of the facts in the record and the findings of the trial court, it is competent. Against this background, therefore, the cases which were relied on the above objection were irrelevant.
RESOLUTION OF THE ARGUMENTS IN THE PRELIMINARY OBJECTION
As noted earlier, objection was taken at the tribunal to the adoption of a witness statement on oath which was identified with figures instead of initials or alphabets. The objector’s ground was that the use of figures to refer to witnesses was in breach of paragraph 1 of the Practice Directions.
The tribunal overruled the said objection on page 479 of the record in these words:
This witness we are of the opinions not (sic) misled, he has identified in (sic) his signature, and the use of the figures is to protect the witness.
The respondent will not suffer any injury, it is in the interest of justice to set (sic) the application. The objection is therefore overruled for these reasons.
Now the said Ground two was couched thus:
The learned trial Judges of the Tribunal erred in law when they held that even though the List of the petitioners’ witnesses and the witness Statement on Oath did not comply with paragraph 1 of the Election Tribunal and Court Practice Directions, 2011 relating to the identity of the witness [002], the appellant as first respondent was not misled
In the particulars, the appellant claimed that:
1. The question of whether the appellant as first respondent was misled or prejudiced as a result of the petitioner’s non-compliance with the provisions of the Election Tribunal and Practice Directions, 2011 was immaterial in the circumstances.
2. The appellant as first respondent was not given an opportunity to explain whether or not he has suffered any prejudice as a result of the petitioner’s non-compliance with the Election Tribunal and Court Practice Directions, 2011 before the tribunal concluded that he has not been misled, thereby denying the appellant fair hearing.
We have perused the above ground and particulars bearing the excerpt of the ruling on page 479 in mind. We are satisfied that a community reading of the said ground and the above particulars would vindicate the appellant’s contention that the above particulars in the said ground explained the agitation against the ruling of the tribunal.
With due respect, the above objection would appear to have overlooked the point that the sole purpose of a ground of appeal [such as the ground of appeal under attack in this appeal] is to notify the respondent of the case he or it would be meeting in the appellate court, Diamond Bank Ltd v P.I.C. Ltd (2010) All FWLR (pt 512) 1098, 1116-117. Worse still, the said objectors would, equally, appear to be oblivious of the fact that the appellant’s intention in setting out the above particulars was to highlight his complaint against the ruling which he appealed against. Simply put, the particulars are his specification of the tribunal’s error in order to make it clear how he would canvass his complaint in an attempt to demonstrate the flow of the tribunal’s reasoning in that aspect of the ruling, Osasona v Oba A. Ajayi and Ors (2004) All FWLR (Pt 216) 443; (2004) 5 SCNJ 82; Diamond Bank Ltd v P. T. C. Ltd (supra) 1116.
In all, it was the appellant’s contention that the preliminary objection is misconceived. We have no hesitation in upholding the validity of this contention. In consequence, we hereby enter an order dismissing the said objection in its entirety as being unmeritorious. Now, we turn to the issues.
ISSUE ONE
1. Whether the failure of the petitioner to identify some of his witnesses’ statement on oath with their initials is sufficient to invalidate the evidence of such witnesses and deny the tribunal the benefit of taking evidence from such competent witnesses.
ARGUMENTS OF COUNSEL
At the hearing of this appeal, Counsel for the appellant adopted and relied on the arguments contained in the brief of argument filed on August 26, 2011. The crux of the arguments therein is that the words “initials”and “alphabets” in paragraph 1 of the Election Tribunal and Court Practice Directions, 2011 [hereinafter simply referred to as the Practice Directions] are not conterminous with figures. The definitions of these words were culled from the Chambers 21st Century Dictionary, page 33. Okotie-Eboh v Manager (2005) All FWLR (pt 241) 22, 310 was cited as authority for the proposition that words used in statutes should be given their ordinary grammatical meaning.
Invoking the well-known maxim “the express mention of one thing means the exclusion of others”, the view was, further, canvassed that the use of the words “initials, alphabets or a combination of both” in the Practice Directions means the exclusion of other things including figures. Several authorities were cited in support of this view.
Next, counsel maintained that the word “shall” in the above enactment was employed in a mandatory sense; hence the tenor of that mandate must be complied with. Again, several cases were cited for this trite proposition of law.
Counsel observed that the identities of thirty five out of the forty one witnesses of the petitioners were represented with figures and not “initials, alphabets or a combination of both.” This alleged act of non-compliance with the above provision was fatal, Chukwuma v Nwoye (2011) All FWLR (pt 553) 1942, 1972-1973; Ojugbele v Lamidi (1999) 9 NWLR (pt 621) 167, 171.
Finally, counsel contended that the sole purpose of enacting the Practice Directions was to facilitate the speedy disposal of petitions. Akereke v Yar’Adua (2008) 12 NWLR (pt 1100) 45, 116 was cited in support of this view.
That is not all, since the said Practice Directions enjoy constitutional flavour, Abubakar v INEC (2004) 11 WRN 147; Owuru v Awuse (2004) All FWLR (pt 211) 429; Buhari v INEC (2008) 4 NWLR (pt 1078) 546 etc, they must be obeyed, Hart v Hart (1990) 1 NWLR (pt 125) 276); Ikimi v Omamuli (1995) 3 NWLR (pt 383) 355; Odu v Jolaoso (2003) 8 NWLR (pt 823) 547.
Relying on the brief of argument deemed properly filed on September 20, 2011, counsel for the first and second respondents advanced four crucial arguments in rebuttal of the above submissions. In the first place, he argued that the essence of the above provision is to allow the petitioner, if he so wishes, to hide the identity of his witnesses pending trial. Above all, the said Practice Directions were designed to facilitate the attainment of justice by clarifying the rules, Ibrahim v Fulani (2009) 18 WRN 40, 55, 56; Chime v Ezea (2009) 34 WRN 39, 99. Against this background, where, instead of facilitating justice they clog the wheels of justice, the Practice Directions must be jettisoned, Boni Haruna v Modibbo (2005) 2 EPR 664,692; UNILAG v Aigoro (1984) 11 SC 152.
Counsel further maintained that if the strict construction of paragraph 1 (supra) will preclude competent witnesses from giving evidence, then it must be dispensed with.
In his view, whatever can be used to represent the witnesses, which is not confusing, is sufficient. This must be so because the witness statement which is on oath must be signed and sworn to by someone. In this case, the witnesses’ statements on oath were signed by the respective persons who appeared before the tribunal to give evidence. What is more, the witnesses’ statements on oath have been properly identified by their authors. The witnesses identified the signatures as their own, citing pages 477; 484 and 485 of the records.
Expectedly, he derided the submissions of counsel for the appellant as contentions verging on technicalities: an approach which contemporary judicial reasoning greets with firm disapprobation, Nwole v Iwuagwu and Ors (2004) 1 EPR 581, 698; Obun v Ebu (2007) 6 WRN 105, 139. Egolum v Obasanjo 1999 7 NWLR pt 611 355, 413.
Counsel for the fourth respondent urged the court to discountenance his brief since the issue therein did not emanate from the grounds of appeal.
Accordingly, his brief filed on September 2, 2011, shall be consigned to the garbage heap: the natural habitat of all worthless processes!
Placing reliance on the reply brief deemed properly filed on September 20, 2011, counsel for the appellant reiterated his submission that the above provision must be complied with strictly, Nwonkwo v Yar’Adu (2011) 13 NWLR (pt 1253) 81, 134.
RESOLUTION OF THE ISSUE
Now, paragraph 1 of the Election Tribunal and Court Practice Directions, 2011, provides thus:
The list of witnesses referred to in paragraph 4 (5) (a) of the First Schedule to the Electoral Act 2011 (as amended) shall be deemed complied with where the identities of the witnesses are represented by initials, alphabets or a combination of both
The pith of the submission of the appellant’s counsel is that since the identities of the witnesses at the tribunal were not represented with ”initials, alphabets or a combination of both” their names should be expunged.
To say the least, this submission is not only misleading, it is a tendentious proposition which, if allowed to gain currency, is capable of scandalising our procedural jurisprudence. In the first place, although Practice Directions have the force of law and parties must adhere to them, Nwankwo v Yar Adua (2010) 12 NWLR (pt 1209) 518, 563, there is an important caveat to this general proposition: obedience to these rules must not be slavish to the point of overriding the justice of the case. It cannot be otherwise for the court users have only one barometer for gauging the pulse of litigation. It comes to the simple question whether, at the end of the litigation process, justice has been done to the parties, Abubarkar and Ors v Yar’Adua and Ors (2008) 4 NWLR (pt 1078) 465, 511 paragraph E-F; Chime v Onyia (2009) 2 NWLR (Pt. 1124) 1, 52.Above all, it must always be borne in mind that Practice Directions are adjunct to the Rules of Court. The raison d’etre for enacting them is to facilitate the philosophical objective of making the administration of justice less esoteric, on the one hand; and the facilitation of the disposal of matters with ease and dispatch, on the other hand. In short, they are aimed at making the administration of justice more user-friendly. It would, therefore, be counter-productive, indeed, preposterous to convert them into expedient implements for slaughtering the inveterate principles of justice on the altar of speed, Chime v Ezea (2009) 2 NWLR (pt 1125) 253, 358; UNILAG v Aigoro (1984) NSCC 755; Ikem v Asioweren (2010) 1 NWLR (Pt.1174) 147, 171-172.
Above all, as adjuncts of rules of court, it would, almost certainly, be repugnant to good sense and logical reasoning if they were allowed to override the provisions of substantive law, Audu v INEC (No 2) (2010) 13 NWLR (pt 1212) 456, 512; Chime v Ezea (2009) 2 NWLR (pt 1125) 203, 358.

Now, the substantive law that governs the competence of witnesses to give evidence in court is the Evidence Act, 2011. Section 175 (1) provides that:
All persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by reason of tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
Thus, subject to the qualifications in the above section, all persons are competent to testify. Thus, to hold, as counsel for the appellants has urged the court to do, would be to wreak havoc on the above provisions of the Evidence Act.
Ironically, so much reliance was place on Ikoro v Izunaso (2009) 4 NWLR (pt 1130) 45, 70. In that case, the Court of Appeal held [at page 70] that:
…’interest of justice’; justice of the case….’ etc have been taken into account and included in the provisions of the rules and so should not be clung to by any unserious and indolent party to justify non-compliance with or breach of the rules to side track the provisions of the paragraphs in the name of the rather sentimental use of the phrases above to permit parties to conduct the petitions as they like would do real violence to the intention of the provisions and result in the unnecessary and irksome delays that characterise the usual civil matters. The express provisions of the Electoral Act and the First Schedule thereto on the need for the expeditious disposal of election petitions would unjustifiably be defeated by such an approach or attitude. ..
Quite apart from the fact, as will be shown later in this judgement, that counsel would appear to have read the above decision superficially, he was not percipient enough to observe that one year before the above decision, the Supreme Court [per Tobi JSC] had taken a firm view on this point. According to erudite Justice of the Supreme Court:
Rules of court are meant to be obeyed. Of course, that is why they are made. There should be no argument about. But there is an important quantification or caveat and it is that their obedience cannot or shall not be slavish to the point that justice in the case is destroyed or thrown overboard. The greatest barometer, as far as the public is concerned, is whether at the end of the litigation process, justice has been done to the parties…
See, Abubarkar and Ors v Yar’Adua qnd Ors (2008) 4 NWLR (pt 1078) 465, 511 paragraph E-F [italics supplied for emphasis] Against this impregnable posture of the Supreme Court, we find considerable merit in the submission on paragraph 4. 01. 5 of the Brief of the first and second respondents. These respondents contended that if the strict construction of paragraph 1 (supra) will preclude competent witnesses from giving evidence, then that provision of the Practice Direction must be jettisoned. We shall, however, not jettison the said provision. Rather, we hold that the intendment of that provision is to grant the parties the liberty of hiding the identity of their witnesses and hence insulating them from the likelihood of any harm to their persons or exposing them to the possibility of inducement. As such, the representation of the identities of such witnesses done by either ”initials”; “alphabets” or figures, as in this case, is in furtherance of the intendment of that provision. True, indeed, the tribunal was right when it held on page 479 that “the use of the figures is to protect the witness”. Thus, the use of figures, as in the instant case, does not fall into the category of non-compliance of the Practice Direction which can deprive the tribunal of the jurisdiction of making use of the statement of such witnesses. To hold otherwise will be to inflict havoc on the Evidence Act which provides for the competence of witnesses. We find no merit in the contentions of the appellant’s counsel, We, therefore, resolve this issue against the appellant and in favour of the first and second respondents.
ISSUE TWO
Whether it is every non-compliance with the Election Tribunal and Court Practice Direction 2011 that can vitiate the effectual trial of an election petition
ARGUMENTS OF COUNSEL
Consistent with his posture on the first issue, counsel for the appellant further maintained that the use of the word ”shall” in the above provision connotes a command. Since the first and second respondents did not comply with the provision, they cannot take benefit of their non-compliance. As such the position of the tribunal that the witnesses were not misled will amount to giving them the benefit of their non-compliance.
He, further, contended that the question of the injury to be suffered as a result of the non-compliance is immaterial. This is so for it was not open to the tribunal to invent excuses for the failure, Chukwuma v Nwoye (supra). On the same premise, the tribunal could not remedy the non-compliance on the grounds of “interest of justice”, Ikoro v Izunaso (2009) 4 NWLR (pt 1130) 45, 70; PDP v INEC (supra) 2852-2853. The implication is that the respondents were under obligation to comply with the said provision. Several decisions were cited in support.
In conclusion, counsel maintained that the non-compliance with the said provision affected the list of witnesses. As such, they cannot be said to have listed their witnesses as required by paragraph 4 (5) of the First Schedule to the Electoral Act 2010 (as amended). Hence, their names ought to have been expunged, Chukwumd v Nwoye (supra).
Counsel for the first and second respondents conceded that Practice Directions and rules of court are meant to be obeyed since they are not mere ornaments, Ibrahim v Fulani(supra). This concession notwithstanding, he took the firm view that where the said Practice Directions do not facilitate the attainment of justice they should be discountenanced.
RESOLUTION OF THE ISSUE
Further to our resolution of the first issue, we have no hesitation in resolving this issue, also, in favour of the first and second respondents. The tribunal was, clearly, right in its conclusion that the use of the figures to identify the witnesses did not prejudice the appellant. As noted earlier, it would, almost certainly, be repugnant to good sense and logical reasoning if the Practice Directions were allowed to override the provisions of substantive law, Audu v INEC (No 2) (2010) 13 NWLR (pt 1212) 456, 512; Chime v Ezea (2009) 2 NWLR (pt 1125) 203, 358, in this case, the Evidence Act which governs the competence of witnesses to give evidence in court, see, section 175 (1) of the Evidence Act, 2011-. Indeed, as already noted above, an intimate reading of Ikoro v Izunaso (supra) would reveal that counsel did not seem to appreciate its real import. The court, in that case, actually, frowned at the conduct of petitions in such a manner as would ”do real violence to the intention of the provisions and result in the unnecessary and irksome delays” [page 70]. We fail to see how the identification of witnesses with the figure ”002” instead of “initials or alphabets or a combination of both” could “do real violence to the intention of the provisions” of paragraph 1 (supra) and result in the unnecessary and irksome delays. On the contrary, it was the frivolous objection of the appellant’s counsel to the adoption of the witness-statement on oath on July 26, 2011, that has prompted this appeal. It has, actually, conduced to the “irksome delay” in the hearing and determination of the election petition before the tribunal. We, also, resolve this issue in favour of the first and second respondents.
In all, we hold that this appeal is, wholly, unmeritorious; vexatious and, essentially, targeted at filibustering the proceedings before the tribunal: proceedings which are time-bound. This advocacy style speaks ill of our procedural jurisprudence. It must be condemned. We enter an order dismissing the appeal in entirety with costs assessed at N50,000.00 against the appellant.