BARRISTER (MRS.) AMANDA PAM & ANOR v. HONOURABLE MICAH YOHANNA JIBA & ORS
(2019)LCN/13461(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of June, 2019
CA/A/EPT/369/2019
RATIO
EVIDENCE : CONTENT OF SECTION 151(1) OF THE EVIDENCE ACT LFN 2004
Let me now consider the merits of the above arguments. S.151(1) of the Electoral Act 2010 as amended provides that- “151. (1) An order for an inspection of a polling document or an inspection of a document or any other packet in the custody of the Chief National Electoral Commissioner or any other officer of the Commission may be made by the election tribunal or the Court if it is satisfied that the inspection is required for the purpose of instituting, maintaining or defending an election petition.”PER EMMANUEL AKOMAYE AGIM, J.C.A.
ELECTION PETITION: ORDER FOR INSPECTION OF A DOCUMENT IN CUSTODY OF THE CHIEF NATIONAL ELECTORAL COMMISSIONER CAN BE DONE BY THE PETITIONER EVEN BEFORE THE HE FILES HIS PETITION
This clearly intends that an application for such an order can be made by a prospective petitioner before he files the petition for the purpose of instituting the petition. Such an application filed before the filing of the election petition is one clearly filed before the pre hearing proceedings that arises from the filing of the petition. This is the type of application for inspection of election documents for the purpose of filing the petition that was made in Abubakar & Anor v. INEC & Ors CA/EPT/PRE/1/M/2019.PER EMMANUEL AKOMAYE AGIM, J.C.A.
Justice
ADAMU JAURO Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
Justice
BARRISTER (MRS.) AMANDA PAM
2. ALL PROGRESSIVE CONGRESS (APC)Appellant(s)
AND
HONOURABLE MICAH YOHANNA JIBA
2. PEOPLES’ DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. RESIDENT ELECTORAL COMMISSIONER (REC), FEDERAL CAPITAL TERRITORYRespondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/EPT/369/2019 was commenced on 18-4-2019 when the appellant herein filed a notice of appeal against the ruling of the Federal Capital Territory and State House of Assembly Election Tribunal delivered on 16-4-2019 in Petition No: EPT/FCT/HR/02/2019. The notice of appeal contains 4 grounds of appeal.
The appellant and 1st respondent filed their respective briefs as follows- appellant’s brief, 1st respondent’s brief and appellant’s reply brief.
The 1st respondent in his brief and argued a preliminary objection to this appeal on the following grounds.
1. Whether this Court has jurisdiction to hear and entertain this appeal on an incomplete record of appeal transmitted to this Court for determination.
2. Whether this appeal is competent in the absence of leave sought and obtained.
Let me consider the preliminary objection.
Let me start with the first ground of objection.
Learned Counsel for the 1st respondent argued that the Tribunal proceedings of 16-4-2019 in which the decision appealed against here was rendered is not
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included in the record of this appeal compiled and transmitted here on 29-4-2019, that the said omitted proceedings is the one relevant to this appeal as it is the basis of this appeal, that the respondent filed in this appeal an affidavit challenging the completeness of the record of this appeal, that the absence of the said proceedings relevant to the determination of this appeal is fatal to the competence of this appeal, that the appellant has a duty to ensure that all parts of the proceedings before the lower Court relevant to the determination of this appeal are in this record of appeal, that the appellant compiled and transmitted this record of appeal here, that being an election appeal, the parties are foreclosed from filing additional record of appeal consisting of the part of the proceedings of the trial Court omitted from the record of this appeal and that this Court lacks the jurisdiction to determine an appeal on an incomplete record of appeal.
Learned Counsel for the appellants has argued that the secretary of the National Assembly Election Tribunal that complied and Transmitted the record of this appeal here on 29-4-2019, has also complied
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and transmitted a supplementary record of this appeal on 8-5-2019, that the supplementary record contains the record of the proceedings of the trial Court of 16-4-2019, omitted in the record of this appeal, that the record of this appeal is now complete, that the omission or inadvertence of the secretary of the Tribunal cannot be visited on the appellants who had done all that they were required to do, that this Court has the jurisdiction to rely on the supplementary record of this appeal, even though it was transmitted here outside the 10 days period prescribed by Paragraph 9 of the Election and Court Practice Direction 2011, that the said paragraph 9 did not preclude the compilation and transmission of a supplementary or additional record of appeal outside the 10 days prescribed therein for the compilation and transmission of the record of an appeal. For these submissions he relied on the following judicial decisions- Waziri v. Geidem (2016) 11 NWLR (Pt. 1523) 230 at 258 and Uduaghan v. Ogboru & Ors (2011) LPELR 4053.
Let me now determine the merit of the above arguments.
It is clear from the initial record of this appeal that it was
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compiled and transmitted here by the Secretary of the Tribunal, Rabi Wali. So the argument of Learned Counsel for the 1st respondent that the appellants on their own compiled and transmitted the incomplete record of appeal and so must swim and sink with it is not correct. The said Secretary of the Tribunal that compiled and transmitted the initial record of this appeal here on 29-4-2019, also complied and transmitted here a supplementary record of appeal on 9-5-2019, containing the part of the proceedings of the Tribunal that was not included in the initial record of appeal. So the record of this appeal now contain the parts of the proceedings of the trial tribunal that are relevant to the determination of the merit of this appeal.
There is nothing that shows that the appellants in any way caused the Secretary of the Tribunal to omit the proceedings of the trial tribunal of 16-4-2019 from the initial record of this appeal transmitted here on 29-4-2019.
As it is, the omissions or mistake of the Tribunal Secretary in the compilation and transmission of the record of this appeal were made by the Secretary of the tribunal.
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The appellants cannot suffer on account of the error or mistake of the Secretary of Tribunal by failing to include the Tribunal proceedings of 16-4-2019 in the initial record of appeal. It would inflict in Justice on the appellants to refuse to hear and determine their appeal to this Court because of the said error of the Secretary of the trial Tribunal. The established judicial principle is to refuse to allow a party to a case to suffer on account of the errors of the Court or of its staff, which error the party has not encouraged, occasioned or contributed to. On the basis of this principle the Supreme Court in Waziri v. Geidem (2014) 11 NWLR (Pt. 1523) 230 at 258, while applying Paragraph 4 of the Supreme Court Election Appeals Practice Direction 2011, which is exactly similar to the provisions of Paragraph 9 of the Election and Court Practice Direction 2011, overruled a similar objection to the use of a supplementary record of appeal in an election appeal before it. The exact Justice of its decision reads thusly- “Now, to the preliminary objection of the 5th respondent which is sitting on the lateness of the filing of the supplementary record for which, learned counsel for the 5th
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respondent is calling on this Court to reject that record, I shall refer to Paragraph 4 of the Supreme Court Election Appeals, Practice Direction, 2011. It stipulates as follows:
‘The register shall within a period of not more than 10 days of the receipt of the notice of appeal, cause to be compiled and served on all the parties, the record of proceedings and transmit same to the Supreme Court.’
I agree with learned counsel for the 5th respondent that because of the nature of election petition proceedings, the effect of non-compliance with the practice direction is fundamental as it would vitiate all the steps taken at the trial rendering all a nullity. However, can a non-compliance by an officer of Court without fault on a litigant have a sanction visited upon the innocent litigant who had done his part as provided for either in the particular legislation or practice direction. My answer would be a resounding NO. This is because the appellants as in this case have fulfilled the conditions of appeal as imposed by the Registrar of the lower Court at the settlement of record, it is taken that the appellants have completed their part, the duty of
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transmitting the record lies squarely within the domestic affair of the registry of the Court whose decision is appealed against and in this case, the Court of Appeal. In similar presentation Chukwuma-Eneh, J.S.C. had in Nwana v. FCDA (2007) ALL FWLR (Pt. 376) 611 at 627; (2007) 11 NWLR (Pt. 1044) 59 at pages 79 80, paras. H A stated thus:
‘However, with respect, the respondent has totally misconceived the impact of Rules 13 and 21(5) of Order 3 of the Court of Appeal Rules, 2002, which have specifically imposed on the trial Court the duty to transmit the record of appeal to the Court below after preparing it in accordance with the provisions of Order 3 Rule 9 of the Court of Appeal Rules, 2002.’
He stated further at pages 28 and at the NWLR page 80 paras D-D:
‘The appellant having done all that he is required under the Rules, the rest is left to the trial Court to carry out its responsibility of transmitting the record and the said exhibits to the Court below. Anything more will be onerous… The failure to transmit the exhibits is entirely that of the trial Court and the blame should not be visited on the
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appellant. This being the case, the appellant should not be made to bear the brunt of the trial Court’s failure in this regard’.
See also N.N.B. Plc v. Denclag Limited (2002) 1 NWLR (Pt. 695) P. 542 at 552, paras. A-B per Muhammad JCA, as he then was said:
‘What is paramount in the process of compilation of record of appeal is for the appellant to make provision for the production of the record. Once he has done so, what remains is within the domestic affair of the registry of the Court whose decision is appealed against. In their instant case, going by the conditions of appeal laid down by the registrar of the trial Court, the applicant, having satisfied all the conditions imposed on him, had successfully complied with the conditions of the appeal.’
Having the support of the precedents above in apposite situations and taking along what is before us, the appellants having done their part in fulfilling the conditions of appeal and supplementary record complained of by the 5th respondent containing the documents rendered in evidence and admitted as exhibits before the trial tribunal which the Registrar of the Court below failed to transmit with
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the earlier volumes 1 and 2 of the record of appeal, it stands to reason that there is no foundation on which what is sought by the 5th respondent in this preliminary objection can be taken with favour, especially as what the objector is seeking is a visitation of a grave penalty on a litigant when the mistake is that of the registry of the Court. It is an administrative error of the registrar of the Court and cannot be described as anything else.”
This Court is bound by the principle of stare decisis to follow the above decision of the Supreme Court on this point. See also Uduaghan v. Ogoru & Ors (2011) LPELR 4053.
The judicial decisions in Seplat Petroleum v. Britannia- & Ors (2014) LPELR – 23126, Michael & Ors v. B.O.N. (2015) LPELR – 24690 (SC), Abisoye v. State (2016) LPELR – 40148 (CA) and Nigerian Navy & Ors v. Labinjo (2012) LPELR – 7868 (SC) relied on by Learned Counsel for the 1st respondent are not applicable here. The issues decided in those cases and the law or Rules of Court applied in those cases are not the same with Paragraph 9 of the Election and Court Practice Direction 2011. It must be borne in mind that
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the Judicial Principle that a party should not suffer for the error of Court or of its staff, would not apply to a case in which the Rules of Court such as Order 8 Rule 4 of the Court of Appeal Rules 2016, place the duty to compile and transmit the record of appeal on the appellant and the record of appeal compiled and transmitted by such party does not contain parts of the proceedings and processes of the lower Court relevant to the determination of the appeal.
In the light of the foregoing, I hold that the Supplementary record of appeal transmitted here on 9-5-2019 is competent and that the record of this appeal is complete as it contains all the proceedings and processes of the trial Tribunal that are relevant to the determination of this appeal.
The first ground of the objection (Issue No 1) is therefore hereby overruled and dismissed.
Let me now determine the second ground of the objection which asks “Whether this appeal is competent in the absence of leave sought and obtained.”
Learned Counsel for the 1st respondent argued that since this appeal is against the exercise of discretion of the trial Tribunal in deciding that the
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application lacks merit and that the petitioners have not shown exceptional circumstances to warrant the application to be heard outside the pre-hearing session,
