CHARLES EHIGIE AIRHIAVBERE, MAJOR GENERAL (RTD) v. COMRADE ADAMS ALIYU OSHIOMHOLE & ORS.
(2012)LCN/5716(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of December, 2012
CA/B/EPT/320/2012
RATIO
COURT: NATURE OF EXERCISE OF DISCRETION OF A COURT
Now, discretion of a Court or judge is the power or right conferred by the law, on a Court in acting in certain circumstances, according to the dictates of the judge’s or court’s own judgment and conscience, uncontrolled and unfettered by the judgment or conscience of others. See Suleiman v. Commissioner of Police (2008) 3 SCNJ 1 at 9 – 10. Therefore, the exercise of a court’s discretion depends upon the peculiar facts and circumstances of each particular case. Just see: ICAN v. Attorney Gen. Federation (2004) 3 NWLR (Pt. 859) 186; Odusote v. Odusote (1971) 1 All NLR 219; Udeze v. Onuniju (2001) 3 NWLR (pt. 700) 216; Oyekanmi v. NEPA (2000) 15 NWLR (pt. 690) 414; Nicon Hotel Inter. S. A. v. Nicon Hilton Hotels & Anor. (2007) 7 NWLR (pt. 1032) 86 at 113 – 114.
It should be noted that with the enormous power entrusted to the judge or court, in exercising its discretion, it cannot so exercise the discretion on a hunch or capriciously. This court, in Siat S. A. Brussels v. S. See Ltd. (2009) 17 NWLR (pt. 1171) 525 at 544 per my Lord, Rhodes-Vivour, J.C.A. (as he then was; now JSC) had admonished that:
“Exercise of discretion does not entail the Judge acting as he likes. It entails the Judge acting judicially and judiciously, that is with sufficient, correct and convincing reason.”
Furthermore, the apex court in Lupex v. N.O.C. & S Ltd. (2003) 15 NWLR (pt. 844) 469 at 488 held inter alia, that:
”Judges and courts exercise their discretion in accordance with rules of law and justice and not according to private opinion. An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law.” PER TOM SHAIBU YAKUBU, J.C.A.
APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS INTERFERING WITH THE EXERCISE OF DISCRETION BY A TRIAL COURT
An appellate Court will only interfere with the exercise of a discretion by a trial Court, if the exercise of the discretion was under a mistake of law, whether substantive or procedural or a misapprehension of the facts before that Court, or that Court considered irrelevant things/matters which it ought not to have considered or the exercise of the discretion worked an injustice to any or both of the parties before it. See: Ojiako v. Attor. Gen. Anambra State (2000) 1 NWLR (pt. 641) 375; Solanke v. Ajibola (1959) 1 NWLR 253; Nicon Hotels Inter S. A. v. Nicon Hilton Hotels Ltd & Ors. (2007) NWLR (pt. 1032) 86 at 113.
The corollary is that the appellate Court will not interfere with a trial Court’s exercise of discretion merely because it would have exercised the discretion differently nor will it substitute its own discretion for that of the trial Court/Judge. See Nicon Hotels Inter S. A. v. Nicon Hilton Hotels Ltd. (supra) at 113 – 114; Ceekay Traders Ltd v. General Motors (1992) 2 NWLR (pt. 222) 132; Adejumo v. Ayantagbe (1989) 3 NWLR (pt. 110) 417; Ogunsanya v. The State (2011) 6 SCNJ (pt. 1) 190 at 220 – 221; Oged Ovunwo v. Woko (2011) 6 SCNJ (pt. 1) 124 at 128 – 129. PER TOM SHAIBU YAKUBU, J.C.A.
JUSTICES
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
CHARLES EHIGIE AIRHIAVBERE, MAJOR GENERAL (RTD) Appellant(s)
AND
1. COMRADE ADAMS ALIYU OSHIOMHOLE
2. ACTION CONGRESS OF NIGERIA (ACN)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. RESIDENT ELECTORAL COMMISSIONER (EDO STATE)
5. THE RETURNING OFFICER, EDO STATE GOVERNORSHIP ELECTION Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): The appellant, along with his political party – the Peoples Democratic Party (PDP) had on 2nd August, 2012 filed a petition at the Edo State Governorship Election Petition Tribunal, holden at Benin City, against the election of the 1st Respondent on 14th July, 2012 as the duly elected Governor of Edo state. The petitioners’ witnesses were listed as thirty-one (31) and each of their written depositions on oath were all contemporaneously filed and frontloaded along with the said petition.
In an application filed on 10th August, 2012 at the instance of the 2nd Petitioner – the PDP, that it was no longer desirous of prosecuting and/or maintaining the aforesaid petition, her name was struck out as a party to the petition.
Each set of the respondents reacted to the petition by filing their replies to it. They also filed each of their witnesses’ statements on oath contemporaneously with their Replies to the petition. In response to the aforesaid Replies, the appellant as the sole petitioner filed his own Replies to each of the 1st, 2nd, 3rd – 5th Respondents’ Replies to the petition. Hence, by 7th September, 2012, all pleadings were filed and exchanged amongst the parties.
The appellant, thereafter on 22nd September, 2012 filed an application dated 20th September, 2012 at the lower tribunal and prayed for an enlargement of time within which to file “Petitioner/Applicant’s additional witnesses’ Written Statements on oath” etc. The additional witnesses’ Written Statements on oath were attached to the affidavit in support of the application.
The grounds for the application were that since the then 2nd petitioner -the Peoples Democratic Party (PDP) had withdrawn from the petition and the “State Secretary of PDP who was to have deposed to witness deposition for the petitioner declined to do so on the instruction of the leadership of the PDP”, it became necessary for the “Petitioner and other witnesses to make witness depositions and testify in this petition”.
The additional witnesses including the petitioner/appellant whose written depositions on oath were filed with the application, were eighteen (18). Each set of the respondents resisted and opposed the application.
The lower tribunal, on 9th October, 2012, in a considered ruling, granted the application, in part, to wit: in respect of the appellant’s own written statement on oath only, as an additional witness, but refused the written statements on oath of the other seventeen (17) additional witnesses. It is against that ruling that the appellant appealed to this Court.
The appeal is anchored on two grounds of appeal, which for ease of reference and appreciation, are reproduced, namely:
“GROUND 1
The learned chairman and member of the Governorship Election Petition Tribunal sitting at Benin City erred in law when they struck out the various Appellant’s additional Witnesses’ Written Statement on Oath except that of the Appellant contained in Exhibit “A”
PARTICULARS OF ERROR
(a) The Appellant made out a case for exceptional circumstances to warrant the grant of the Appellant’s application for additional Witnesses.
(b) The exit of the 2nd Petitioner – the People Democratic Party (PDP) from the petition created the exceptional circumstances for the grant of application for additional Witness Deposition.
(c) The Ruling of the Lower Tribunal is against the decision of the Supreme Court in the case of ABUBAKAR vs. YAR’ADUA (2008) 4 NWLR pt. 1078 p. 465 at 513 – 514.
GROUND TWO
The learned Chairman and Member of the Governorship Election Tribunal sitting at Benin City erred in law when they debarred the Appellant from filing additional Witnesses Deposition on oath.
PARTICULARS OF ERROR
(a) The decision of the Lower Tribunal refusing the Appellant’s additional Witnesses Deposition on oath is an infringement on the Appellant’s right to fair hearing.
(b) The Appellant’s opportunity and right to put across his case has been circumscribed by the said ruling”
The appellant in prosecuting this appeal filed his brief argument dated 13th November, 2012 on the 15th November, 2012. In it, a sole issue for determination was formulated thus:
“Whether the Lower Tribunal was right when it refused the Appellant’s application to file additional Witnesses, written statement on oath other than that of the Appellant? (Distilled from grounds 1 and 2)”
The 1st Respondent’s brief of argument dated 19th November, 2012 was filed on the same date. Therein, a Notice of Preliminary Objection pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2011; Paragraph 7 of the Election Tribunal and Court Practice Directions 2011 and under the Inherent jurisdiction of the Court was raised to the effect that the appeal is incompetent because:
(i) The appeal is not supported by any record.
(ii) The appellant had failed to satisfy the condition of appeal that would activate the compilation of record.
Thereafter, the 1st respondent adopted the sole issue for determination as formulated by the appellant in his brief of argument.
The 2nd Respondent’s brief of argument dated 19th November, 2012 was filed on the same date. A sole issue for determination was formulated therein, to wit:
“Whether the tribunal was right when (in exercising its discretion) it refused to grant the appellant’s application to file additional witnesses’ deposition.”
On their part, the 3rd – 5th Respondents, filed their brief of argument dated 22nd November, 2012, on 23rd November, 2012. They formulated an issue for determination, inter alia:
“WHETHER IN ALL THE CIRCUMSTANCES OF THE CASE THE TRIBUNAL WAS IN ERROR TO REFUSE LEAVE TO THE APPELLANT TO REPLY ON THE ADDITIONAL WITNESS STATEMENTS ON OATH NOT FILED ALONG WITH THE PETITION. GROUNDS 1 AND 2.”
The appellant’s Reply brief dated 22nd November, 2012 was filed on same date, in reaction to the 1st Respondent’s brief of argument. So also, the appellant filed his Reply brief of argument dated 22nd November, 2012 on the same date in response to the 2nd Respondent’s brief of argument.
In arguing the appeal, the learned counsel, for the appellant submitted that by virtue of paragraph 4 (1), (2), (3) and (5) of the First Schedule to the Electoral Act 2010 (as amended) and Order 19 Rule 10 of the Federal High Court (Civil Procedure) Rules, 2009 which is applicable to election petition proceedings by virtue of paragraph 54 of the First Schedule to the Electoral Act 2010 (as amended), the lower tribunal was empowered to enlarge the time within which a party to an election petition can carry out any of the orders or directives contained in the Electoral Act 2010 and any other piece of legislation regulating the filing of any process in an election petition. He furthermore submitted that the appellant amply deposed to sufficient facts in the affidavit in support of the application, why the additional witnesses’ statements on oath ought to have been allowed to form part of the petition and that the said additional witnesses’ statement on oath relate to facts already pleaded in the petition.
He also submitted that court rules of procedure are an adjunct to the dispensation of justice and not aimed at defeating justice. He relied on Muhamadu Buhari & Ors. v. Chief Olusegun Obasanjo & Ors. (2003) 1 LRECN 1 at 40. It was the further contention of appellant’s learned counsel that a party has the right to ventilate his case by calling additional witnesses, even during trial. He placed reliance on Abubakar v. Yar’Adua (2008) 4 NWLR (pt. 1078) 465 at 513 – 514 and Section 36 (i) (a) of the 1999 Constitution of the Federal Republic of Nigeria, and that justice cannot be slaughtered at the altar of speed.
Earlier in the introductory part of this judgment, I had indicated that the 1st respondent raised a Preliminary objection to the hearing of this appeal on the grounds that it is not supported by any record of appeal and also that the appellant did not satisfy the conditions of the appeal for the compilation of the record of appeal. It is noteworthy that when this appeal came up for hearing on 28th November, 2012, there were some skirmishes between the parties, in respect of whether or not one record of appeal would suffice for two separate appeals on two different rulings of the lower tribunal. This court then directed that each appeal must be supported with its own record of appeal. Hence, when the appeal came up for hearing again on 3rd December, 2012, there were separate records of appeal already compiled, transmitted and filed for each set of the appeal No.CA/B/EPT/320/2012 herein and the sister appeal No.CA/B/EPT/344/2012. Consequently, the learned Senior Counsel – Chief Wole Olanipekun, for the 1st respondent, did not, understandably argue the aforesaid preliminary objection again. Therefore, the same is deemed as abandoned and it is hereby struck out.
Arguing the appeal, the learned Senior Advocate, for the 1st respondent, submitted that an interlocutory application of the nature at the lower tribunal is grantable at the discretion of the tribunal taking into account what the justice of the case before it demanded. He placed reliance on M. V. Lupex v. N.O.C. & S Ltd. (2003) 15 NWLR (pt. 844) 469 at 488. And that an applicant seeking any order from a court or tribunal must place sufficient materials before the court in order for it to exercise its discretionary power in favour of such an applicant/party. He referred to Re: Yar’Adua (2011) 17 NWLR (pt. 1277) 567 at 585 – 586.
The learned Senior Counsel, furthermore submitted that the appellant did not place sufficient materials before the lower tribunal to warrant the grant of the application for additional witnesses and their written statements on oath.
Referring to paragraph 12 of the affidavit in support of the application, learned senior counsel submitted that the appellant ought to have frontloaded evidence to cover the totality of the facts allegedly already pleaded in the petition along with the petition at the time of filing it and that written depositions of witnesses constitute an integral part of the petition and which must be fifed along with the petition. He relied on Dingiyadi v. Wamako (2008) 17 NWLR (pt. 1116) 395 at 438.
It was the further contention of the learned Senior Counsel, that a grant of the appellant’s application would have overreached the Respondents because the application tended to completely change the character of the petition and impliedly amended it. He referred to some instances in certain Local Government Areas where some witnesses’ depositions were originally frontloaded with the petition visi-a-vis the same Local Government Areas where additional witnesses’ written depositions were intended by the appellant’s application.
Furthermore, the learned Senior Counsel submitted that the authority of Buhari v. Obasanjo (supra) relied upon by the appellant was decided on the 2002 Electoral Act which had no provision with respect to frontloading of witnesses’ written depositions along with the filing of petitions.
Chief Olanipekun, furthermore submitted that the lower tribunal made specific findings to the effect that the appellant did not provide it with sufficient convincing evidence to enable it exercise its discretion in his favour and also that some of the depositions of the additional witnesses tended to introduce new facts into the petition, which were not appealed against, so they remain binding. He relied on Saidu v. Abubakar (2008) 12 NWLR (pt. 1100) 201 at 216.
Mr. Adetunji Oyeyipo, SAN, for the 2nd respondent, in arguing the appeal submitted that by virtue of Paragraph 4(5) of the 1st Schedule to the Electoral Act, 2010 (as amended), it is incumbent on a petitioner to file along with his petition written statements of the witnesses who would give evidence at the trial. And that where a petitioner failed to do so and he applied to the tribunal to file additional witnesses’ statements, it becomes the question of the court or tribunal in exercising her discretion to grant or refuse the application, hence it is no more of a right nor can it be granted as a matter of course. Furthermore, the learned Senior Counsel submitted that the law is settled that where a party seeks the discretion of the court, such a party must furnish the tribunal or Court, with materials upon which the discretion will be exercised in his favour. He relied on Re: Yar’Adua (2011) 17 NWLR (pt. 1277) 567 at 585 – 586; Ajuwa v. S.P.D.C.N. Ltd. (2011) 18 NWLR (pt. 1279) 797 at 828 – 829.
The learned Senior Counsel also submitted that in an application for an extension of time to do a thing, the party applying, must explain the cause of the delay for not acting within the time stipulated by law for doing it and that the explanation must be satisfactory to the court. He referred to Ezechukwu & Anor. v. Onwuka (2006)? (pt. 963) 151 at 191; Falough v. First Impression Cleaners Ltd. (2010) 10 NWLR (Pt. 1203) 656 at 655.
Mr. Oyeyipo referred to Paragraphs 6 – 12 of the affidavit in support of the application, which according to him, did not explain the cause of the delay in filing the intended witnesses’ written depositions on oath, hence the lower tribunal in its ruling at pages 936 – 937 of the records of appeal, came to the conclusion that it was not satisfied with the facts in the affidavit in support of the application and therefore was unable to exercise its discretion judicially and judiciously in favour of the applicant.
The learned Senior Counsel for the 2nd respondent, furthermore submitted that the findings by the lower tribunal to the effect that it did “not see any pleaded fact deposed to in the supporting affidavit to allow us exercise our discretion in accordance with the law to allow the petitioner file the depositions at this stage of the case”, and that some of the depositions tended “to introduce new facts into the evidence which will amount to giving evidence on unpleaded facts”, were not appealed against. Therefore, according to him, those findings bind the appellant. He relied on Agagu v. Mimiko (2009) 7 NWLR (pt. 1140) 342 at 416; Abubakar v. B. O. & A.P.L. Ltd. (2009) 18 NWLR (pt. 1066) 319 at 381; Nwoke v. U.B.N. Plc (2009) 10 NWLR (pt. 1148) 1 at 26; F.A.A.N. v. Greenstone Ltd (2009) 10 NWLR (pt. 1150) 624 at 649.
He urged us to hold that there was no breach of appellant’s right to a fair hearing in the circumstances of this case where the witnesses he was seeking to introduce into his petition were available at the time he was filing his petition, but chose not to call them and offering no explanation as to why he intends to call them into his petition at a late stage. He urged that the sole issue for determination be resolved against the appellant and his appeal be dismissed.
Robert Emukpoeruo, Esq., of learned counsel to the 3rd – 5th respondents, submitted that the appellant having failed to file the additional witnesses’ written depositions contemporaneously with his petition as required by Paragraph 4(5) (b) of the First Schedule to the Electoral Act 2010 (as amended) and having failed to furnish the lower tribunal with any reason for not so doing in his application, cannot in any way blame the said tribunal which exercised its discretion judicially and judiciously, but not whimsically or capriciously. He referred to Order 19 Rule 10(1) of the Federal High Court (Civil Procedure) Rules 2009 which is applicable to the proceedings at the lower tribunal by virtue of Paragraph 54 of the First Schedule to the Electoral Act, 2010 (as amended) and submitted that the application of the appellant was at the discretion of the tribunal and not that of this court.
Referring to Abubakar v. Ya’Adua (2008) 4 NWLR (pt. 1078) 465 at 513, learned counsel submitted that the applicants therein, gave cogent and compelling reasons in their application for additional witnesses’ depositions in the petition, which was why this court and the apex court, accepted those reasons. He however contended that in the instant application, there is no explanation why the 17 witnesses’ depositions were not ready and filed along with the petition. He urged us to hold that the authority of Abubakar v. Yar’Adua is not apposite and in favour of the appellant and that a case is only authority for what it actually decided. He referred to Yusuf v. Obasanjo (2004) 5 S.C. (pt. 1) 27 at 47 and urged us to dismiss this appeal.
I hereby adopt the sole issue formulated by the appellant for the determination of this appeal. To my mind, it effectively covers the issues formulated for determination by the 2nd and 3rd – 5th respondents, respectively.
Unarguably, by virtue of Paragraph 4(5) of the First Schedule to the Electoral Act 2010 (as amended), a petitioner in an election petition, must, at the time of filing his petition, file along with it, contemporaneously, the list of the witnesses he intends to call in proof of the petition; written depositions/statements on oath of the witnesses and copies or list of every document to be relied on at the trial and hearing of the petition.
The appellant herein as at the time he filed his petition on 2nd August, 2012 dutifully filed along with the said petition, a list of thirty-one (31) witnesses and contemporaneously with each of their written statements/depositions on oath. This is what is now called and known as frontloading of evidence. However, where the petitioner, such as the appellant herein, in an application at his instance wishes to add some other witnesses into his petition, the tribunal or court, hearing the petition, possess the discretionary power to grant or refuse the application as the case may be, depending on the facts and circumstances of the particular case. See Paragraph 45(1) (2) & (3) of the First Schedule to the Electoral Act 2010 (as amended) and Order 19 Rule 10 of the Federal High Court (Civil Procedure) Rules 2009 which is applicable to election petitions by virtue of paragraph 54 of the First Schedule to the Electoral Act 2010 (as amended).
It is indisputable that the appellant’s application for the introduction of 18 additional witnesses’ depositions/statements into his petition, after all the parties to the petition have joined issues and exchanged their pleadings, was eminently at the discretion of the lower tribunal which exercised its discretion and granted the appellant’s prayer with respect to his own (petitioner’s) written deposition on oath. The said tribunal however, was of the opinion that it was not satisfied with the facts deposed to by the applicant/appellant in the affidavit in support of the application, with respect to the other seventeen (17) witnesses’ written depositions on oath, hence they were struck out.
Now, discretion of a Court or judge is the power or right conferred by the law, on a Court in acting in certain circumstances, according to the dictates of the judge’s or court’s own judgment and conscience, uncontrolled and unfettered by the judgment or conscience of others. See Suleiman v. Commissioner of Police (2008) 3 SCNJ 1 at 9 – 10. Therefore, the exercise of a court’s discretion depends upon the peculiar facts and circumstances of each particular case. Just see: ICAN v. Attorney Gen. Federation (2004) 3 NWLR (Pt. 859) 186; Odusote v. Odusote (1971) 1 All NLR 219; Udeze v. Onuniju (2001) 3 NWLR (pt. 700) 216; Oyekanmi v. NEPA (2000) 15 NWLR (pt. 690) 414; Nicon Hotel Inter. S. A. v. Nicon Hilton Hotels & Anor. (2007) 7 NWLR (pt. 1032) 86 at 113 – 114.
It should be noted that with the enormous power entrusted to the judge or court, in exercising its discretion, it cannot so exercise the discretion on a hunch or capriciously. This court, in Siat S. A. Brussels v. S. See Ltd. (2009) 17 NWLR (pt. 1171) 525 at 544 per my Lord, Rhodes-Vivour, J.C.A. (as he then was; now JSC) had admonished that:
“Exercise of discretion does not entail the Judge acting as he likes. It entails the Judge acting judicially and judiciously, that is with sufficient, correct and convincing reason.”
Furthermore, the apex court in Lupex v. N.O.C. & S Ltd. (2003) 15 NWLR (pt. 844) 469 at 488 held inter alia, that:
”Judges and courts exercise their discretion in accordance with rules of law and justice and not according to private opinion. An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law.”
Now, how did the appellant’s application fare in the circumstances of his petition vis-a-vis the exercise of the lower tribunal’s discretion on it. I have perused the affidavit of the appellant in support of the application. The affidavit evidence supplied by the applicant is the spring board which propels the court in exercising its discretion in respect of an application of this nature. I think it is expedient to reproduce particularly paragraphs 612 of the said affidavit, to wit:
6. “That after the petition was filed in the registry of this Honourable Tribunal on 2nd August, 2012 the petitioner/Applicant briefed Chief E. L. Akpofure, SAN to lead his legal team.
7. That the Petitioners’ lead Counsel Chief E. L. Akpofure SAN informed me in his chambers at No.45B, NNPC Housing Estate Road Ekpan on 6th September, 2012 and I verily believe that after carefully studying the file and interviewing the witnesses, he has found it necessary for the petitioner to file additional witnesses Statements on oath to take care of the imbalance created by the exit of the 2nd petitioner.
8. That the Petitioner was not to have testified originally because the Secretary of the Peoples’ Democratic Party (PDP) ought to have deposed to witness Statement on oath on behalf of the original two Petitioners before this Honourable Tribunal.
9. That subsequently the secretary did not make any witness deposition for the petitioners in anticipation of the 2nd Petitioner’s withdrawal from the petition.
10. That at the point of filing this petition, the Secretary of the Peoples’ Democratic Party declined to sign the written deposition for him.
11. That consequent upon the above it has become necessary for the petitioner to make a witness deposition for himself in support of the petition.
12. That the Petition intends to call additional witnesses in line with the facts already pleaded in the petition and the depositions of the said witnesses are herein attached and marked collectively as Exhibit “A”.
The lower tribunal, after a due consideration of the affidavit evidence put forward by the appellant came to the conclusion that:
“There is no evidence whatsoever to how (sic: show) any or all the proposed additional witnesses are being called to replace witnesses of the PDP that was initially a party to the petition. Without furnishing the necessary facts and circumstances on which the tribunal can exercise its discretion, the Tribunal cannot act in vacuum otherwise it will be acting arbitrary on humour and on a wrong principle (s) of law.”
Upon a calm perusal of Paragraphs 6, 7, 8, 9,10 and 11 of the appellant’s affidavit in support of the application, it is very clear and crystal to me that they all pertain to the withdrawal of the Peoples Democratic Party (PDP) as a petitioner/party from the petition, hence it is evident at paragraph 11 of the said affidavit that consequent upon the non signing of the written witness deposition by the Secretary of the PDP who was to testify for the initial two petitioners, it became “necessary for the petitioner to make a witness deposition himself in support of the petition”. The lower tribunal rightly and commendably granted the application in respect of the appellant’s written deposition because the facts deposed to at Paragraphs 6 – 11 of the affidavit in support of the application were so compelling that the lower tribunal could not have exercised its discretion against that part of the application. It would have been unconscionable if it were otherwise.
The application at that stage was left with paragraph 12 of the affidavit supporting it, to the effect that the 17 additional witnesses were to give evidence “in line with the facts already pleaded in the petition…” The nagging questions are: what were those facts already pleaded in the petition? And if those facts were already pleaded in the petition, why were the 17 additional witnesses’ depositions on oath not made and filed contemporaneously with the petition on 2nd August, 2012? Furthermore, why did the appellant have to wait from 2nd August, 2012 to 22nd September, 2012 before filing the application in question? And were the 17 additional witnesses to give the evidence that the 2nd petitioner would have given, if it did not withdraw from the petition as alluded to at paragraph 7 of the affidavit? But it is noteworthy that at the filing of the petition on 2nd August, 2012; the 1st and 2nd petitioners had filed the list of their 31 witnesses along with the petition.
I am of the considered opinion that it is the positive answers to the above questions that ought to have been proferred by the appellant in his affidavit which could have aided the lower tribunal in exercising its discretion in his favour. The appellant had the onerous duty to place cogent and sufficient materials before the lower tribunal to persuade it to exercise its discretion in his favour.
The duty placed on the applicant in an application of this nature, to satisfy the Court by placing before it sufficient materials, before the Court’s discretion can be exercised in his favour, was reiterated and put beyond argument more recently by the Supreme Court in Re: Yar’Adua (2011) 17 NWLR (pt. 1277) 567 at 585 – 585, per my Lord, Mohammed,
JSC, thus:
“This Court has stated the law and even the practice in a number of decisions, that for a person to approach this Court or any other Court for that matter, with an application which seeks the Courts indulgence, such a person is duty bound to place sufficient materials before the Court in order to assist the Court exercise its discretion in his favour. Such discretion exercise must be founded upon facts and circumstances presented to the Court from which a conclusion governed by law will have to be drawn. See: Duwin Pharm. Chem. v. Beneks Pharm. & Cosmetics Ltd. (2000) 15 NWLR (pt. 689) 66. It is also said that judicial exercise of a discretion is not arbitrary or fanciful because it is done with sufficient, correct and convincing reasons…”
An appellate Court will only interfere with the exercise of a discretion by a trial Court, if the exercise of the discretion was under a mistake of law, whether substantive or procedural or a misapprehension of the facts before that Court, or that Court considered irrelevant things/matters which it ought not to have considered or the exercise of the discretion worked an injustice to any or both of the parties before it. See: Ojiako v. Attor. Gen. Anambra State (2000) 1 NWLR (pt. 641) 375; Solanke v. Ajibola (1959) 1 NWLR 253; Nicon Hotels Inter S. A. v. Nicon Hilton Hotels Ltd & Ors. (2007) NWLR (pt. 1032) 86 at 113.
The corollary is that the appellate Court will not interfere with a trial Court’s exercise of discretion merely because it would have exercised the discretion differently nor will it substitute its own discretion for that of the trial Court/Judge. See Nicon Hotels Inter S. A. v. Nicon Hilton Hotels Ltd. (supra) at 113 – 114; Ceekay Traders Ltd v. General Motors (1992) 2 NWLR (pt. 222) 132; Adejumo v. Ayantagbe (1989) 3 NWLR (pt. 110) 417; Ogunsanya v. The State (2011) 6 SCNJ (pt. 1) 190 at 220 – 221; Oged Ovunwo v. Woko (2011) 6 SCNJ (pt. 1) 124 at 128 – 129.
Before I draw the curtain on this appeal, I think I should say a word in respect of the authority of Abubakar v. Yar’Adua (2008) 4 NWLR (pt. 1078) 465 heavily relied upon by learned counsel to the appellant. I have myself perused the said authority. It was a presidential election petition heard by this Court as an election petition tribunal. There was an application by the respondents to file sworn statements of witnesses outside the time so provided for it to be filed. The respondents gave reasons and explained why the said sworn statements were not ready when the reply to the petition was filed by them. This Court agreed with their explanation and granted the application. The appellants, aggrieved by the decision of this Court, appealed to the Supreme Court, which dismissed their appeal.
The reverred law Lord Niki Tobi, JSC at p.513 of the report held:
“I entirely agree with the submission of learned Senior Advocate for the 4th – 808th respondents that the view of the Court of Appeal on the matter “was supported by all the facts before the Court as made out in the affidavit in support of the application.” Paragraphs 5, 6, 7 and 8 of the affidavit in support clearly vindicate the position taken by learned Senior Advocate. The paragraphs have explained the reason why the sworn statements of the witnesses were not ready at the time the reply was filed. If the appellants are not satisfied with the reasons, I am. So too the Court of Appeal and so, why the storm or furore?”
I am afraid, the facts in Abubakar v. Yar’Adua (supra) are not the same with the facts in the instant appeal. The lower tribunal found that “the applicant failed to state any reason why the additional witnesses should be allowed except as averred in paragraph 12 of the supporting affidavit.” I have demonstrated earlier in this judgment why paragraph 12 offered no solace or shelter for the appellant in his application at the lower tribunal. I therefore, totally agree with the lower tribunal that the authority of Abubakar v. Yar’Adua (supra) does not support the appellant. That authority could not have been a talisman for the appellant. It added no prosperity to his application. Instead, it added a great deal of poverty to it!
I must say that where a party failed to discharge a burden placed upon him, which led to a Court not exercising its discretion in his favour, the party cannot turn round and blame the Court by crying that it had been denied a fair hearing of his application, as submitted by the learned counsel to the appellant. The complaint of lack of fair hearing in the circumstances of this appeal is tantamount to blaming the medicine man by the sick man who did not appropriately take the drugs prescribed for his healing by the medicine man. I am of the considered opinion that a complaint of lack of fair hearing is not a cure for all sickness drug!
I am satisfied that this appeal is fluffy. It is lacking in merits. I dismiss it accordingly.
The ruling of the lower tribunal dated 9th October, 2012 is hereby affirmed.
Each side shall bear its own costs.
GEORGE OLADEINDE SHOREMI, J.C.A: I had the privilege of reading the judgment just delivered by my learned brother, Hon. Justice T. S. Yakubu, J.C.A. He had dealt with all issues raised and I adopt same as mine. I have nothing to add to the well considered judgment.
I agree that the appeal is unmeritorious and ought to be dismissed. I abide with all consequential orders made therein including order as to cost.
JAMES SHEHU ABIRIYI J.C.A: I agree.
Appearances
K. O. Obamogie Esq., S. O. Agwinede Esq., P. O. Itua Esq., D. O. Inegbeboh Esq., R. I. Okunbo (Mrs.), Sylvanus Oriakhena Esq., Nosaze Adaze Esq., F. E. Ulifun Esq., C. Akhigbe Esq., E. Avboraye Esq., for the Appellant.For Appellant
AND
Chief Wole Olanikpekun S.A.N., Rickey Tarfa S.A.N., O. A. Omonuwa S.A.N., (with S. P. Imolode Esq., O. O. Samuel Esq. O. Ohenhen Esq., Oladipo Osinowo Esq., F. Erewele Esq., Sir Adams Aliu Esq., Jatto Topa Esq., Nelson Imafidon Esq., Kudus Shehu Malami Esq., Dayo Adesina Esq.,) – for the 1st Respondent.
Adetunji Oyeyipo S.A.N., Ken Mozia SAN, Rotimi Oguneso SAN, (with Nnamonso Ekanem Esq. V. E. Ohiosunmua Esq. Dr. Edoba Omoregie, R. O. Oaihimire (Mrs.), G. A. Oladejo Esq., F. Omo – Osadiaye Esq., Christopher Ebosele Esq., A. O. Eikhor Esq. Tajudeen Alade Esq., Santos Owootori Esq., Mrs N. I. Ekunwe O. O. Erhahon, R. I. D. Okezie, Mrs. E. Evbayiro, Miss E. Aisien) for the 2nd Respondent.
E. R. Emukpoeruo Esq., N. H. Auta Esq., D. O. Owolabi (Mrs.) for the 3rd – 5th Respondents.For Respondent
