BARR. IBRAHIM SHEHU SHEMA V. HON. AMINU BELLO MASARI & ORS
(2011)LCN/4844(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of October, 2011
CA/K/EPT/GOV/9/2011
RATIO
INTERLOCUTORY DECISION: WHETHER AN APPELLATE COURT HAS JURISDICTION TO HEAR APPEALS OF INTERLOCUTORY DECISION IN AN ELECTION PETITION
The law is clear that there is no appeal from an interlocutory decision in an Election Petition. See Orubu v. NEC (1988) 12 SCNJ 254. In that case, Orubu v. NEC (supra) the Appellant who was a candidate in the Local Government Elections held on 12/12/87, brought a Petition before the High Court praying that the declaration by NEC that the 14th Respondent was duly elected, be declared null and void. He sought and was granted an ex parte order of interlocutory injunction restraining the 14th Respondent from being sworn in as Chairman of the Warri Local Government. An application by Motion on Notice filed to have the order discharged was dismissed and the 14th Respondent then appealed to the Court of Appeal against the Ruling dismissing his application. The Court of Appeal dismissed the preliminary objection raised by the Appellant to the hearing of the appeal on the ground that it had no jurisdiction to hear the appeal in regard to the order of injunction. The Court of Appeal allowed the appeal to it and discharged the order of injunction. The Supreme Court in allowing the appeal, held- ”The Jurisdiction of the Court of Appeal to hear appeal in election Petitions on Local Government elections is, limited to appeals in final decisions of the High court. The present case is an appeal arising from the interlocutory decision of the High Court. It is not part of the final decision of the high Court. The Court of Appeal in hearing the interlocutory appeal engaged in an exercise for which it clearly had no jurisdiction. Its decision was therefore null and void.” PER AMINA ADAMU AUGIE, J.C.A
NEXUS: MEANING OF THE WORD “NEXUS”
The word ”Nexus” simply means – ”a connection or link” – see The Penguin Concise Dictionary. PER AMINA ADAMU AUGIE, J.C.A
DUTY OF THE COURT: WHETHER A COURT CAN APPROBATE AND REPROBATE AT THE SAME TIME
Just like any litigant or party to an action, a court of law is also not permitted to approbate and reprobate at the same time, particularly on this type of issue that is so crystal clear. See Ajadi v. Ajibola (2004) 16 NWLR (Pt.898) 91 at 195 paras A -C.” (Highlight mine) PER AMINA ADAMU AUGIE, J.C.A
AFFIDAVIT: MEANING AND NATURE OF AN AFFIDAVIT
Applications are supported by affidavits, and an affidavit, as Tobi, JCA (as he then was) aptly said in Ojukwu V. Onyeador (1991) 7 NWLR (Pt. 203) 286, is – ”a Court process in writing deposing to facts within the knowledge of the deponent. It is documentary evidence, which the Court can admit in the absence of any unchallenged evidence”. Affidavits are also described as statements of facts, which the deponent swears or affirms to be true to the best of his knowledge or which are based on information, which he believes to be true – see Josien Holdings Ltd V. Lornamead Ltd. (supra), and Maja V. Samouris (supra), wherein the Supreme Court adopted the statement of Lord Alverstone, CJ in Re J.L. Young Manufacturing Co. Ltd (1900) 2Ch 753 at 754 as follows – ”This case is one of general importance as regards the practice of admissibility of evidence by affidavit. In my opinion some of the affidavits in this case are wholly worthless and not to be relied upon. I notice that in several instances, the deponents make statements on their information and belief, without saying what their source of information and belief is, and in many respects what they state is not confirmed in any way. In my opinion so-called evidence on ”information and belief” ought not to be looked at, at all, not only unless the Court can ascertain the source of the information and belief but also unless the deponent’s statement is corroborated by someone who speaks from his personal knowledge. (Highlight mine) PER AMINA ADAMU AUGIE, J.C.A
DUTY OF THE COURT: WHETHER A TRIBUNAL OR COURT CAN FILL IN THE GAPS AND MAKE A CASE FOR A PARTY WHERE THERE WAS NONE
What the Tribunal did was to fill in the gaps and make a case for the 1st Respondent where there was none, and it is well settled that where there are gaps in the case put forward by a party; it is not within the province of a Court to fill in the gaps see Mobar V. Ali (2002) 1 NWLR (pt. 747) 95, and NBCI V. Standard (Nig.) Eng. Co. Ltd. (2002) 8 NWLR (pt. 765) 104. PER AMINA ADAMU AUGIE, J.C.A
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
Between
1. BARR. IBRAHIM SHEHU SHEMA Appellant(s)
AND
1. HON. AMINU BELLO MASARI
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. PEOPLES DEMOCRATIC PARTY [PDP]
4. RESIDENT ELECTORAL COMMISSIONER, KATSINA STATE
5. THE RETURNING OFFICER, KATSINA STATE
6. THE COMMISSIONER OF POLICE Respondent(s)
AMINA ADAMU AUGIE, J.C.A (Delivering the Leading Judgment): Dissatisfied with the declaration and return of the Appellant as the duly elected Governor of Katsina State, the 1st Respondent filed a Petition at the Katsina State Governorship Election Tribunal, wherein he prayed for-
1. A DECLARATION that INEC failed to provide a level playing field between the competing contestants in the conduct of the election to the seat of Governorship of Katsina State held on 26th April 2011. Consequently, the election and return of the Appellant herein is null and void.
2. A DECLARATION that the Appellant did not sore majority of the lawful votes cast at the election … neither did he score the required 25% of votes of 2/3 of the Local Government Areas (LGAs) in Katsina State. Consequently, he was not entitled to a return or a declaration as a winner of the said election.
3. An Order declaring the return and declaration made – – in favour of the Appellant as the winner of the election unlawful, unwarranted, null and void.
4. A DECLARATION that the election is void by reason of corrupt practices which was manifestly practiced on a large scale across the entire LGAs of the State thereby invalidated the election and return of the Appellant.
5. A DECLARATION that all the results of the polling units and wards subject of complaint in paragraph 17 of- this Petition declared void, and consequently deducted from the scores wrongly credited to the Appellant.
6. A DECLARATION that he (the 1st Respondent) is entitled to be returned as the winner of the election and as the elected Governor…
ALTERNATIVELY
7. An Order directing the 2nd, 4th and 5th Respondents herein to conduct a re-run election between him and the Appellant only to determine in compliance with the Constitution where both have failed to meet the mandatory requirement of the Constitution (as amended).
The Petition was accompanied with 52 Written Statements on Oath, and a list of 34 Documents, which the 1st Respondent intended to rely upon at the trial. At the pre-hearing session, he filed an application dated 6th July 2011 for leave ”to file additional witnesses’ statements on oath”, and in its Ruling delivered on the 18th of July 2011, the Tribunal over-ruled the respective objections raised by of the Respondents, and held –
”Based on all the reasons given herein, we hold that this Application has merit.
It is granted as follows:
1. Leave be and is hereby granted to the Petitioner/Applicant to file Additional Witness Statements on Oath in his Petition.
2. The Additional Witness Statement on Oath of Akilu Lukman filed on 6/7/11 and the 2nd Additional Witness Statement on Oath of Akilu Lukman attached as Exhibit 1 to the Petitioner’s Further and Better Affidavit in support of his application, filed on 14/7/2011 are deemed as having been properly filed and served.
However, after trial commenced, he filed yet another Application dated 10th August 2011, praying the lower Tribunal for the following reliefs –
(a)An order … granting leave to the Petitioner/Applicant to move this application out-side of the pre-hearing session
(b) An order granting leave to the Applicant to file an additional witness statement on oath in support of the Petition.
(c)An order … deeming the additional witness statement separately filed as have been properly filed and served …
(d)And for such order or further order(s) as the Honourable Tribunal may be disposed to make in the circumstances of this case.
The ”Grounds upon which the Application is based” are that –
(1) The Applicant’s witness, Akilu Lukman, whose additional witness statement was filed on 6/7/11 containing analysis of the voters registers and Form ECA used during the conduct of the Governorship Election in Katsina State, and who served as the Secretary of a fact finding Committee constituted by the Petitioner to analyze the voters registers, travelled to Mecca for Pilgrimage and will not be back into the country until about the second week of September, 2011
(2) The Petitioner did not envisage that the witness wilt not be around during the time the petitioner is to open and close his case, neither did the potential witness inform the team of Petitioner’s lawyers before traveling out of the country.
(3) The witness sought to be substituted for Akilu Lukman was the Chairman of the fact finding Committee and knows the same facts, if not more than the witness sought to be substituted and has sworn and has sworn to the statement on oath.
The Application is supported by a 10-paragrapir Affidavit deposed to by one George Ibrahim, a legal Practitioner, who averred in paragraph 7 –
”I was informed by my Principal, James Ocholi SAN in our Law Office … on 8th of August, 2011, a hour of 4pm (sic), and I verily believe him as follows –
a) Akilu Lukman, who served as the Secretary of the fact finding Committee that analyzed the certified true copies of the Electronic Voters Register from INEC and Form ECBA, following which he made a Statement on Oath on the 6th July 2011, had traveled to Mecca on a pilgrimage and will not be back to the country until about the second week of September.
b) As at the time Akilu Lukman made the additional witness statement on Oath, it was not anticipated that he would travel at the time the Petitioner would open his case.
c) That Arch. Ahmed Dangiwa, who served as the Chairman of the Committee that did the analysis contained in the additional witness statement of Akilu Lukman, is sought to be used in place of Akilu Lukman.
d) That the Arch. Ahmed Dangiwa being the chairman of the fact finding Committee to which Akilu Lukman served as the secretary knows all, if not more than Akilu Lukman, who deposed to the ac1clitional witness statement.
e) That the said additional witness statement signed by Arch. Ahmed Dangiwa has been separately filed at the registry of this Tribunal…
f) That it is utmost importance, that leave be granted the Petitioner outside the pre-hearing to file the additional witness statement sought to be substituted.
g) That the additional witness statement on Oath is substantially the same as that filed on the 6th of July, 2011 and does not raise any fresh ground of complainant or new set of facts which are not yet pleaded”.
The Appellant, who was the 2nd Respondent at the Tribunal, opposed the Application and filed a 19-paragraph Counter-affidavit to that effect, and the 3rd Respondent also did same with a 19-paragraph Counter-Affidavit.
The other Respondents did not file any processes on the Application.
The Application was argued on the 16th of August 2011, and in its Ruling delivered on the 18th of August 2011, the Tribunal held as follows-
”…The additional witness statement on oath of Arch. Ahmad Dangiwa is substantially the same with that of Akilu Lukman to be substituted. Both … (were) made as a result of the order of this Tribunal that granted the Petitioner/Applicant access and inspect INEC election materials used in the Governorship Election of Katsina State held on the 26th April, 2011. Thus, to shut out the Petitioner/Applicant by refusing this; application, will also amount to jettisoning an earlier order for inspection and tor the Petitioner to obtain Certified True Copies of the Election materials from the 1st Respondent. To that extent, the main issue for resolution in-this application is hereby resolved in favour of the Petitioner/Applicant. Accordingly, the Tribunal is of the view that based on the material facts submitted in the affidavit in support and Ground two on which the Application is based, the Petitioner/Applicant deserves the exercise of the Tribunal’s discretion in its favour. Therefore the application is hereby granted and the following orders made…”
Dissatisfied with the Tribunal’s decision to grant the Application ”outside pre-hearing session”, the Appellant filed an interlocutory appeal in this Court with a Notice of Appeal containing seven) Grounds of Appeal, but in his Brief of Argument settled by the following – Chief Wole Olanipekun (SAN), I. A. Adedipe (SAN), Uyi lgunma, Esq., Aliyu Ahmed, Esq., Mrs. Zainab Ahmed, Napoleon O. Idenala, Esq., Altulkadir Abdullahi, Esq., Ayo Adesanmi, Esq., Olalekan Lasaki, Esq., and S. Ojile, Esq, only one Issue for Determination was distilled from the said 7 Grounds, as follows-
”Having regard to the clear provision of Paragraph 47(1)of the First Schedule to the Electoral Act, 2010 (as amended), the dearth of materials in the supporting affidavit of the Petitioner/1st Respondent to support his application, coupled with binding decisions of both the Court of Appeal and the Supreme Court directly on the issues raised before the lower Tribunal, whether the lower Tribunal was not in grave error when it granted the 1st Respondent’s Application dated 10th August, 2011 to file additional witness statement on Oath after pre-hearing session had ended”.
The 1st Respondent adopted the Appellant’s issue as formulated in his Brief of Argument settled by James Ocholi (SAN), Uye Ogedegbe, Esq., Miss Catherine l. Nwosu, A. S. Yarima, Esq., and George Ibrahim, Esq.
None of the other Respondents filed any briefs in this appeal, and so, the contest in this Court, is between the Appellant and 1st Respondent only. However, the 1st Respondent gave notice in his brief that ”on or before the hearing of this appeal preliminary objection shall be taken challenging the competence of this appeal” upon the following grounds –
i. The instant appeal is incompetent not being in compliance with the provision of Section 246(i)(b)(ii) of the 1999 Constitution …
ii. The decision of the Trial Tribunal appealed against is only an interlocutory decision in the proceedings still pending at the Trial Tribunal.
But at the hearing of the appeal, Chief Wole Olanipekun (SAN) referred us to Order 10 rule 1 of the Court of Appeal Rules, and submitted that although a purported Notice-of Preliminary Objection was inserted in the 1st Respondent’s brief, it amounts to a mere intention, which will become actualized or crystallized by filing the Notice of Objection, as mandatorily demanded under the said Order 10 rule 1.
The said Order 10 rule 1 requires a Respondent intending to rely on a preliminary objection to give the Appellant ”three clear days notice”, before the hearing of the appeal. Mr. James Ocholi (SAN) conceded that ”the said provision is there”, but referred us to Nsirim V. Nsirim (1990) 3 NWLR (Pt.138) 285 at 290 – 297, Lagos State Water Corporation V. Sakamori Construction (Nig.) Ltd. (2011) 12 NWLR (pt.1262) 569.
Yes, a Respondent must give the Appellant three clear days notice”, but the method of raising a preliminary objection, is firmly settled.
It may be in the Respondent’s brief, by a formal separate notice or written objection or both. The overriding principle is that the Respondent must seek leave of the Court to move the objection before the hearing of the substantive appeal – see Magit V. University of Agric, Maku rdi (2005) 19 NWLR (Pt. 959) 211 SC, Tiza & Anor V. Begira (2005) 15 NWLR (pt.949) 616 SC & Nsirim V. Nsirim (supra), wherein Obaseki, JSC said –
”Being a preliminary objection, the objection should have been by motion or notice before the hearing of the appeal so that arguments on it can be heard by the Court. While notice of objection may be given in the brief, it does not dispense with the need for the Respondent to move the Court at the oral hearing for the relief prayed for”. (Highlight mine)
And L.S.W.C. V. Sakamori Const. (Nig.) Ltd. (supra) wherein it was held-
Although the Respondent may give this notice in his brief, provided the brief is filed at least three clear days before the hearing of the appeal, he has to formally raise and argue the objection at the hearing of the appeal, failure of which is tantamount to an abandonment of the objection.”
In this case, the 1st Respondent’s brief, with his Notice of preliminary Objection set out at page 6 thereof, was filed, on 9th September 2011, and the appeal itself came up for hearing on the 19th of September 2011.
The Appellant cannot, complain about any three clear days notice.
Besides, rule 3 of same Order 10 of the Court of Appeal Rules, allows this Court to make such order as it thinks fit, and bearing in mind that this is an election matter in which time is of the essence, it is my view that the Appellant’s objection should not stand in the way of the 1st Respondent moving the said preliminary objection raised in his brief, and I so hold. The 1st Respondent’s preliminary objection is hinged on Section 246(1)(b) ii of the 1999 Constitution (as amended), which provides –
”An appeal to the Court of appeal shall lie as of right from –
b. Decisions of the National Assembly Election Tribunals and Legislative Houses Election Tribunals on any question as to whether
i. Any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution
ii. Any person has been validly elected to the office of Governor or Deputy Governor”
In essence, his contention is that the Ruling appealed against was not a final decision in the sense of the, above provision, and he cited the following authorities – Amabare V. Sylva (2007) LRECN 30, Usani V. Duke (2003) 2 LRECN 408, Orubu v. NEC (1988) 5 NWLR (Pt. 94) 323 SC, Ogolo v. Dagogo (1999) 2 RECN 114 & Okokhue V. Obadan (1981 – 1990) LRECN 648.
The Appellant filed a Reply Brief wherein it was pointed out that the said Section 246 (1)(b)(ii) has been repealed and replaced with a new Section 246 in the latest amendment to the said Constitution.
It was submitted that the objection must fail because ”you cannot place something on nothing and expect it to stand”, citing Mcfoy V. UAC (1952) AC 152 and Sken Consult V. Ukey (1981) 1 SC 6; that what the 1st Respondent did is to bring or predicate his preliminary objection on a repealed or dead law akin to filling an action in a non-existent Court, citing Nzonwanne & ors. v. Igwe & ors. (1976) NSCC 10, Uttah v. Independent Bravery Ltd. (1974) 2 SC 7, and that the appropriate Section with respect to appeals on any question whatsoever relating to the validity of decisions of the Governorship Election Tribunal is the new Section 246 (1)(c) (ii) of the amended 1999 Constitution, which provide –
”An appeal to the court of Appear shall lie as of right from-
(c) Decisions of the Governorship Election Tribunal on any question as to whether –
(ii) Any person has been validly elected to the office of Governor or deputy Governor.”
He further argued, citing Awolowo Vs. Shagari (1979) 6 – 9 SC, that the above Section 246 (1)(c) is very clear that this Court has jurisdiction to take appeals from ”decisions” of the Governorship Election Tribunal on ”any question”; and that it should not be read to imply that this Court only has jurisdiction to entertain appeals on a particular type of decision on a particular question, as that will defeat the purpose of the legislature, rather than giving vent to the intention of the legislature, which is the duty of any Court in the interpretation of statutes, citing Ike & Ors. V. Patrick & Ors. (1975) 2 SC1 Okwuosa V. Okwuosa (1974) 2 SC 13. N.E.W. Ltd. V. Denap Ltd. (1997) 10 NWLR (pt.525) 481. He drew our attention to Section 318 of the Constitution, which provides that ”decision” includes ”Judgments, decree, order, conviction, sentence or recommendation”, and citing Ameachi vs. INEC (2005) 5 NWLR (pt. 1080) 227, submitted that the joint interpretation of both Sections will imply that this Court has jurisdiction to hear both interlocutory and final appeals from the Tribunal.
He also cited Awuse V. Odili (2003) 18 NWLR (pt 851) 116, wherein the Supreme Court distinguished Orubu V. NEC (supra), and restated its decision in Buhari V. Obasanjo that ”decisions” in Section 246 has been defined under Section 318 to include interlocutory rulings; and Kantiok V. Ishaku (2009) All FWLR (pt. 455) 1754 at 1764, wherein this Court referred to other decisions where interlocutory appeals were entertained, including Uzodinma V. Udenwa (2004) All FWLR (pt. 213) 1813, and boldly described an earlier decision of this Court in Okon vs. Bob (2004) NWLR (pt. 854) 373 as a wrong decision having failed to follow the decisions in Awuse V. Odili and Buhari V. Obasanjo (supra), and also and dismissed a similar preliminary objection like the one brought herein. This Court was urged to do same, particularly as the provisions of Paragraph 18 of the Elections Tribunal and Court Practice Directions, 2011, clearly envisage the filling and hearing of interlocutory appeals.
Both parties filed lists of additional authorities, and Chief Wole Olanipekun (SAN) referred us to Abubakar V. Yar-Adua (2005) 4 NWLR (Pt. 1078) 465, Babalola V. Sunday (2009) 3 NWLR (pt.1128) 414, Uduma v. Arunsi (2009) 17 NWLR (pt. 1170) 310, Odon v. Amange (2008) 4 LRECN 370, and Effiong V. FHA (2005) All FWLR (pt. 283) 37.
Mr. James Ocholi (SAN) referred us to Awuse V. Odili (supra) and Buhari V. Obasanjo (2003) 1 LRECN 1, which he said ”does not help the Appellant one bit”, and NASCO Management Services Ltd. Amaku Transport Ltd. (2003) 2 NWLR (Pt 504) 290. He also argued that the position of the law has not changed as it relates to the jurisdiction of this Court and the right of appeal flowing from the said Section 246(1)(c)(ii).
In arguing as he did, the 1st Respondent quoted what I said in 2003 in the case of Usani V. Duke (supra) at page 9 – 10 of his brief, thus –
”I agree with the Appellant’s counsel that the two Rulings of the 1st of July 2003 and 7th of July 2003 being appealed against must be considered separately. Undoubtedly, the Ruling of 1st of July 2003, which merely granted the 1st Respondent an extension of time to file his Reply to the Petition, was an interlocutory decision. Appellant’s counsel sought to argue in a roundabout fashion that the Ruling of the 1st of July 2003, matured to a final decision on the 7th July 2003. On the contrary, that Ruling has nothing whatsoever to do with the Ruling of the 7th of July 2003. The first Notice and Grounds of Appeal is dated 4th of July 2003, three days before the 7th of July 2003 when the Appellant’s counsel applied for a stay of proceedings and leave to appeal against the said Ruling of the 1st of July 2003. The law is clear that there is no appeal from an interlocutory decision in an Election Petition.
See Orubu v. NEC (1988) 12 SCNJ 254. In that case, Orubu v. NEC (supra) the Appellant who was a candidate in the Local Government Elections held on 12/12/87, brought a Petition before the High Court praying that the declaration by NEC that the 14th Respondent was duly elected, be declared null and void. He sought and was granted an ex parte order of interlocutory injunction restraining the 14th Respondent from being sworn in as Chairman of the Warri Local Government. An application by Motion on Notice filed to have the order discharged was dismissed and the 14th Respondent then appealed to the Court of Appeal against the Ruling dismissing his application. The Court of Appeal dismissed the preliminary objection raised by the Appellant to the hearing of the appeal on the ground that it had no jurisdiction to hear the appeal in regard to the order of injunction. The Court of Appeal allowed the appeal to it and discharged the order of injunction. The Supreme Court in allowing the appeal, held-
”The Jurisdiction of the Court of Appeal to hear appeal in election Petitions on Local Government elections is, limited to appeals in final decisions of the High court. The present case is an appeal arising from the interlocutory decision of the High Court. It is not part of the final decision of the high Court. The Court of Appeal in hearing the interlocutory appeal engaged in an exercise for which it clearly had no jurisdiction. Its decision was therefore null and void.”
What can I say? – That was the law as we saw it in 2003, but then again, none of our laws has been changed so much or as frequently as those relating to election matters. Apart from the Electoral Act, which has been changed a couple of times since 2003, the constitution has also been amended to reflect changes in that area. ”Change” essentially means ”to make different; alter” – see Websters Comprehensive Dictionary, and as the Latin phrase goes – tempora mutantur, et nos mutamur in illis [times change, and we change with them]. The law cannot be static, and we live in a world where the law changes to meet the dynamics of time. What I am trying so hard to say is that Mr. Ocholi (SAN) cannot be right; the position of the law has changed since I took that decision in 2003.
The decision of the supreme court in Abubakar V. Yar-Adua (supra), settled the issue once and for all. Tobi, JSC, emphatically said at 496 –
No court of law has the jurisdiction to take away from or deny the Appellants their right of appeal based on the two grounds of preliminary objection. whether the parties have taken steps in the court of Appeal … this court is not competent to deny the Appellants their constitutional right to file an interlocutory appeal. (Highlight mine)
Tabai, JSC, also observed as follows at page 525-
”section 233 (1) of the 1999 constitution … provides to the effect that an appeal from the decision of the court of Appeal … shall lie as of right to the supreme court where the ground of appeal involves questions of law alone. And this is irrespective of whether the decision is, final or interlocutory. Thus, where the Grounds of Appeal against the decision, whether final or interlocutory, involves questions of law alone, … the appeal is competent”.
So, the Supreme Court overruled the decisions, including mine, on which the 1st respondent based his objection, which must be overruled also. Besides, I do agree with the Appellant that Paragraph 18 of the Practice Directions 2011, which say – ”an interlocutory appeal shall not operate as a stay …”, envisages the filing and hearing of interlocutory appeals.
The 1st Respondent’s preliminary objection lacks merit and is overruled.
Now, the interlocutory appeal itself is hinged on Paragraph 47(1) of the First Schedule to the Electoral Act, 2010 (as Amended), which says –
”No Motion shall be moved and all Motion shall come up at the pre-hearing session, except in extreme circumstances with leave of Tribunal or Court.”
The Appellant’s contention is that the 1st Respondent’s Application dated 10th August 2011 is incompetent and ”ungrantable having regard to the mandatory provision of the above Paragraph 47(1); and that no material was presented by him to warrant the Tribunal exercising any discretion or indulgence in his favour. It was submitted, citing Okereke V. Yar’Adua (2008) 12 NWLR (Pt.1100) 95 at 12 – 121 that the paragraph made an outright prohibition of moving motions except at pre-hearing session. He referred us to the definition of ”special circumstances, as distinct from ”extreme circumstance” in N.I.W.A. V. S.P.D.C.N. Ltd. (2008) 13 NWLR (pt. 103) 48, the meaning of ”extreme” in New International Webster’s comprehensive Dictionary of the English Language, (2010 edition), and submitted that the 1st Respondent was required to exhibit the uppermost degree of diligence, and present succinct and sufficient materials capable and intimidating enough to convince the lower Tribunal of why the application should be granted.
He further argued that paragraph 7 of the supporting Affidavit (reproduced above) offends against Section 88 and 89 of the Evidence Act because there is no nexus between the deponent and Akilu Lukman, and also no nexus between Akilu Lukman and James Ocholi, SAN, and the deponent did not state how he came to know that Akilu Lukman travelled out of the country. Veepee Ind. Ltd. v Cocoa Ind. Ltd. (2005) 13 NWLR (part. 1105) 486 SC, Maja v. Samouris (2002) 7 NWLR (Pt.765) SC 78 at 105 – 106, Alao v. A.C.B. Ltd (2000) 9 NWLR (pt 672) SC 264, Edu vs. Commissioner for Agriculture (2000) 12 NWLR (Pt.651) 316, Abana vs. Obi (2004) 8 NWLR (pt.877) 1 and Josien Holdings Ltd vs. Lornamead Ltd. (1995) 1 NWLR (pt.371) SC 254 cited.
The 1st Respondent, on his part, countered that the said Sections of the Evidence Act had not been violated in any way, and referred us to paragraphs 1 and 4 of the said Affidavit in support of the Application, which he argued constitute a nexus between Mr. Ocholi (SAN), George (the deponent), and Akilu Lukman. He further submitted that how Mr. James Ocholi (SAN) got to know that Akilu Lukman had traveled out of the country is knowledge peculiar to him as counsel in the Petition.
To start with, let us look at the law. Section 88 of the Evidence Act provides that when a person deposes to his belief in any matter of fact, and his belief is derived from any source other-than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief, and Section 89 thereof further provides –
”When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstances of the information”.
In this case, the Appellant’s contention is that there is no “nexus” between the deponent, George Ibrahim, and Akilu Lukman, and between Akilu Lukman and Mr. Ocholi (SAN), and that the deponent did not state how he came to know that Akilu Lukman traveled out of the country.
The word ”Nexus” simply means – ”a connection or link” – see The Penguin Concise Dictionary. Looking at the chain of events in this case, there is a discernible link or connection between the said three persons.
The deponent, George Ibrahim, clearly stated at paragraphs 1 to 4 –
1. That I am a Legal Practitioner in the law firm of Ocholi James (SAN) & Associates briefed to handle this matter for the Petitioner and have been fully involved in the preparation of the Petition and oilier proceedings in this matter by virtue of which I am conversant with the facts of this case.
2. That I have the consent of both my Principal Ocholi James, SAN and that of the Petitioner to depose to this Affidavit.
3. That I know as a fact that the Petitioner filed this Petition on 16th May 2011 and pleadings have long been closed by the parties.
4. That I know as a fact that one Akilu Lukman deposed to an Additional Witness Statement on Oath dated 6th July 2011.
It must be remembered that the 1st Respondent applied and was granted leave ”to file Additional Witnesses’ statements on Oath”, and that the –
”Additional Witness Statement on Oath of Akilu Lukman filed on 6/7/11 and the 2nd Additional Witness Statement on Oath of Akilu Lukman … filed on 14/7/2012, were deemed by the Tribunal to have been properly filed and served on the 18th of July 2011, during the pre-hearing session.
So, we have the deponent linked to his Principal, who was briefed by the 1st Respondent to handle the Petition at the Tribunal, wherein they filed and obtained leave to file Akilu Lukman’s Additional Witness Statement. The twist in the tale appears when we look for what happened to Akilu Lukman between 18th of July 2011, when his Additional Statements were deemed filed and 11th of August 2011, when the Application that culminated in this appeal was filed, outside the pre-hearing session, which is where paragraph 7 of the Affidavit in support thereof comes in.
The Tribunal reasoned as follows at pages 1527 to 1529 of the record –
”For an application to succeed under Paragraph 47(1) …. the Applicant must place before the Court or Tribunal, material facts to warrant the grant of such application. In other words … the applicant must depose to material facts in his affidavit to be entitled for the exercise of the court or Tribunal’s discretion in its favour. A close look at the affidavit in support of application and the grounds upon which the application is predicated could it be said that the Petitioner/Applicant had disclosed sufficient and material facts which could be said to be extreme in the circumstance? Paragraph 7(a) to (g) of the affidavit in support of application appears to be the basis of bringing this application.
In other words, does the said paragraph disclose sufficient material facts to amount to ”extreme circumstance”? … the relevant paragraphs are 7(a), (b), (f) and (g) and paragraph 9 of the supporting affidavit. I reproduce paragraphs 7(a) and (b) for emphasis … The Tribunal has also looked into the counter affidavits of the 3 sets of Respondents that opposed the present application. It appears from the counter affidavit of the 1st, 4th and 5th Respondents and that of the 2nd Respondents, paragraph 7(a) and (b) of the affidavit of the Petitioner/Applicant have not been controverted. However, the counter affidavit of the 3rd Respondent at paragraphs 3 and 16 The combined effect of paragraph 3 and 16 of the counter affidavit of the 3rd Respondent and taking into account the averments of the Petitioner/Applicant in his affidavit in support, the following questions will arise;-
(1) When did Akilu Lukman travel to Mecca?
(2) Is there any evidence to suggest that lie travelled to Mecca for pilgrimage?”
After asking these very pertinent questions, the Tribunal held as follows-
”In the affidavit of the Petitioner/Applicant, the date which the said Akilu Lukman travelled was not disclosed. Secondly, there is no evidence e.g. flight ticket exhibited of Akilu Lukman.. However, a perusal of ground two upon which the Applicant based or predicated his application upon, it reads thus:-
”The Petitioner did not envisage that the witness will not be around during the time the Petitioner is to open and close his case. Neither did the potential witness inform the team of Petitioner’s lawyers before travelling out of the country.”
From the facts of ground two in support of application, it appears that at the time the said Akilu Lukman travelled out of the Country, neither the Petitioner/Applicant or the team of lawyers of the Petitioner are aware of his schedule trip to Mecca. In that case, for the petitioner/Applicant to obtain the necessary information as deposed to at paragraph 8 of the counter affidavit of the 1st, 4th and 5th respondents would be practically impossible”.
As far as the Appellant is concerned-the Tribunal should have dismissed the Application without much ado, rather it appeared ”to contradict itself by somersaulting by reversing itself and impugning the reasons given for its conclusion that the Applicant did not supply sufficient materials to warrant the grant of the application”. He further argued in his brief that –
”Against the terse facts deposed to in the supporting Affidavit, which the Tribunal held were not sufficient, the same lower Tribunal based the grant of the Application on ‘Ground (ii)’ of the motion paper and perversely treated what is contained in that ‘Ground (ii)’ as sufficient facts given for the trip of Akilu Lukman outside the country. With respect, grounds in support of a motion cannot constitute facts deposed to in an affidavit and neither can they be a substitute for the facts deposed to on oath. There is no precedent for this decision of the lower Tribunal. It is perverse in the extreme, as the Tribunal shut its eyes to the very obvious aid took into consideration what are illegal and illogical. see Agbomeji vs Bakare (1998) 9 NWLR (Pt.564) 1 at 8, paras C; Odiba v. Azege (1998) 9 NWLR (pt.566) 370 at 380, paras D – E.
In addition to the foregoing, the same set of reasons given by the Tribunal to fall back on ‘Ground(ii)’ are the same reasons which should have compelled any reasonable Tribunal to refuse the application. This is more so when within the same ‘Ground (ii)’, it is started that the said Akilu Lukman did not inform the team of Petitioner’s lawyers before travelling out of the country.
Considered against the background of paragraph 7 of the supporting affidavit, how then did James Ocholi SAN know that Akilu Lukman traveled out of Nigeria? In other words, if the said ‘Ground (ii)’ is property and logically married with paragraph 7 of the supporting ‘ affidavit, or weighed against same, it should have deflated it completely. Thus, the use to which the lower Tribunal made of the said ‘Ground (ii)’ is also perverse in the extreme. Just like any litigant or party to an action, a court of law is also not permitted to approbate and reprobate at the same time, particularly on this type of issue that is so crystal clear. See Ajadi v. Ajibola (2004) 16 NWLR (Pt.898) 91 at 195 paras A -C.” (Highlight mine)
On his part, the 1st Respondent referred us to the definitions of ”extreme case”, ”circumstances”, ”exception” in Black’s Law Dictionary, 6th Ed.; and after setting out the Grounds for the Application, submitted that-
”Where a litigant secures a potential witness, who front loads his evidence and then becomes unavailable or incommunicado, will it be in the interest of justice and fairness to allow that party to replace that witness with another who will give exactly the same evidence with amending the pleadings?.
The answer ought to be yes observing the circumstances as an acceptable exception and we urge your Lordships to so hold. Was the sudden travel or disappearance of the-witness contemplated by the petitioner? No. since it was not an act contemplated then it was of a character or kind farthest removed from the ordinary or average. Do persons who sign statements on oath ordinarily travel and refuse to attend court or Tribunal. Is it conventional or an act of an average person? No it certainly is beyond reason and these circumstances thus make it extreme”.
As to how Mr. Ocholi (SAN) got to know that Akilu Lukman had travelled out of the country, he simply submitted at page 15 of his brief that – ”it is knowledge peculiar to him as counsel in the Petition”. But it was not Mr. Ocholi (SAN), who deposed to the Affidavit in support of the Application; it was George Ibrahim, a legal Practitioner in his, Law Firm, who averred in paragraph 7 that he was informed by Mr. Ocholi (SAN) and he verily believed him that ”Akilu Lukman had travelled to Mecca on pilgrimage”.
The be all and end all question is how did Mr. Ocholi (SAN) know that Akilu Lukman had traveled to Mecca on pilgrimage? Akilu Lukman is not his client; he was briefed by the 1st Respondent to handle the petition to which Akilu Lukman was to be a witness. There is a lacuna here; Akilu Lukman’s Additional Witness Statements were deemed filed on the 18th of July 2011 and by the 11th of August 2011, when the Application was filed at the Tribunal,. Akilu Lukman was not available as a witness.
Nigerian politics being what it is; anything could have happened.
Akilu Lukman could have fallen out with the 1st Respondent; he could have decamped to another party; or he could simply have refused to appear as a witness for the 1st Respondent. We are not allowed to speculate but can only ask how Mr. Ocholi (SAN) knew he had traveled.
Before I go on, I want to make it abundantly clear that the issue is NOT whether a pilgrimage to Mecca is an ”extreme circumstance” in the sense used in Paragraph 47 (1) of the 1st Schedule to the Electoral Act, but whether the Tribunal was provided with sufficient material to warrant it’s granting the Application outside pre-hearing session on that ground.
Applications are supported by affidavits, and an affidavit, as Tobi, JCA (as he then was) aptly said in Ojukwu V. Onyeador (1991) 7 NWLR (Pt. 203) 286, is – ”a Court process in writing deposing to facts within the knowledge of the deponent. It is documentary evidence, which the Court can admit in the absence of any unchallenged evidence”.
Affidavits are also described as statements of facts, which the deponent swears or affirms to be true to the best of his knowledge or which are based on information, which he believes to be true – see Josien Holdings Ltd V. Lornamead Ltd. (supra), and Maja V. Samouris (supra), wherein the Supreme Court adopted the statement of Lord Alverstone, CJ in Re J.L. Young Manufacturing Co. Ltd (1900) 2Ch 753 at 754 as follows –
”This case is one of general importance as regards the practice of admissibility of evidence by affidavit. In my opinion some of the affidavits in this case are wholly worthless and not to be relied upon. I notice that in several instances, the deponents make statements on their information and belief, without saying what their source of information and belief is, and in many respects what they state is not confirmed in any way. In my opinion so-called evidence on ”information and belief” ought not to be looked at, at all, not only unless the Court can ascertain the source of the information and belief but also unless the deponent’s statement is corroborated by someone who speaks from his personal knowledge. (Highlight mine)
The 1st Respondent argued that the decision – in Maja V. Samouris (supra) is not relevant to this case as the facts were within the personal knowledge of Mr. Ocholi SAN, and not from any information or belief. But the deponent did aver that he got the information that Akilu Lukman had traveled to Mecca for pilgrimage from Mr. Ocholi (SAN), and that he verily believed him. If that fact was within the personal knowledge of Mr. Ocholi (SAN), how and from whom did he obtain the said information?
It could be argued that Mr. Ocholi acquired the said information by virtue of his duty as counsel to the 1st Respondent, but even so, the law requires such a deponent to confine himself to facts and circumstances-
see Bamaiyi v. The state (2001) 8 NWLR (pt. 715) 270 SC, where the deponent, a Legal officer in the Lagos State Attorney-General’s office, stated that he had the authority of the Attorney-General to depose to the Affidavit, and that by virtue of his schedule of duties, he was conversant with the facts of the case. The supreme court per Uwaifo, JSC, held-
It must not be forgotten that the deponent, Olakunle Laigali, deposed that by virtue of his schedule of duties he became conversant with the facts of the case. To be conversant with is to have knowledge of a matter. Even so, the law requires a deponent of his type to confine himself to facts and circumstances. An affidavit meant for use in court stands as evidence and must as near as possible conform to oral evidence admissible in Court”.
I repeat – ”an affidavit meant for use in court stands as evidence and must as near as possible conform to oral evidence admissible in Court”.
Can the deponent’s averments stand up to scrutiny in a court of law?
Obviously not; there is nothing before the Tribunal to show how Mr. Ocholi (SAN) got the information that Akilu Lukman had traveled, and the Tribunal rightly found that there was no such evidence before it.
However, it decided to turn the law upside down by relying on a Ground upon which the Application was based to justify granting the Application.
A ground for an application is a terse statement explaining why the Application is being brought, and the Application itself must be supported by an affidavit, which must be sworn or affirmed before a designated or authorized person. If it is not so sworn or affirmed, it shall not be admitted – see section 83 of the Evidence Act, and Maraya Plastics Ind. Ltd. v. Inland Bank (2002) FWLR (Pt.120) 1723 wherein it was held-
”… The averments contained in a paper are admissible as a fact until they are disproved because the averments are sworn to before a commissioner for Oaths. It is the swearing thereto that makes the document an affidavit. Where the document is not sworn to, it is only a piece of paper, not an affidavit. The word ‘affidavit’ is derived from the Latin ‘affidavit’, which is a declaration of an oath. Without the oath therefore there is no affidavit”.
The situation in this case brings to mind the age-old controversy over which one came first – the chicken or the egg How can a ground for bringing an application, which is stated on the face of the motion paper, without more, be used to justify granting an Application, which must be supported by an affidavit sworn before the Commissioner for Oaths?
In the circumstances, I have to agree with the Appellant that there is no precedent for the Tribunal’s decision, and that it is perverse indeed.
What the Tribunal did was to fill in the gaps and make a case for the 1st Respondent where there was none, and it is well settled that where there are gaps in the case put forward by a party; it is not within the province of a Court to fill in the gaps see Mobar V. Ali (2002) 1 NWLR (pt. 747) 95, and NBCI V. Standard (Nig.) Eng. Co. Ltd. (2002) 8 NWLR (pt. 765) 104.
The end result of the foregoing is that the appeal succeeds and is allowed. The Ruling of the Tribunal delivered on the 18th of August 2011, and the orders made therein are hereby set aside. No order as to costs.
ABDU ABOKI, J.C.A.: I agree.
T.N. ORJI-ABADUA, J.C.A.: I agree.
Appearances
Chief Wole Olanipekun (SAN) with Uyi Igunma, Esq., Napoleon Idenali, Esq., Ayo Adesanmi, Esq., and A. Abdulkadir, Esq.For Appellant
AND
Mr. James Ocholi (SAN) with Uye Ogedegbe, Esq., A. S Yerima, Esq., and George Ibrahim, Esq. For the 1st Respondent
M. O. Obhahinmejele, Esq., with A.I.T. Adams, Esq. For the 2nd, 4th and 5th Respondents
M. I. Abubakar, Esq. for the 3rd Respondent
Hassam Yusuf, Esq. With Muktar U. Abdullahi, Esq. For the 6th RespondentFor Respondent
