EKITI STATE INDEPENDENT ELECTORAL COMMISSION & ORS. V. PEOPLES DEMOCRATIC PARTY (PDP) & ANOR.
(2013)LCN/6720(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of March, 2013
CA/EK/16/2012
RATIO
WHETHER ORAL EVIDENCE CAN BE ADDUCED TO RESOLVE CONFLICT IN CONTRADICTORY AFFIDAVIT EVIDENCE
The law is trite that where affidavit evidence are in conflict oral evidence should be led to resolve the conflict, unless there is documentary evidence which can tilt the contradictory evidence one way or the other. see: Eimskip v. Exquisite (2003) J.S.C.N.J 317 at 341 per Niki Tobi, JSC; Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135), 688. The apex court held in Chief Atanda v. Olanrewaju (1988) 4 NWLR (Pt.89) 394; that where depositions in affidavit of opposing parties conflict, the court is not allowed to prefer one deposition to the other. In such cases, the only course open to the court in order to resolve the conflict is to take oral evidence. See also: Momah v. Vab Petroleum Inc. (2000) 4 NWLR (Pt.654) 534. Per UCHECHUKWU ONYEMENAM, J.C.A
WORDS AND PHRASES: CAUSE OF ACTION
A cause of action is the whole or complete set of circumstances giving rise to an enforceable claim. Therefore it consists of the fact of diverse facts which put together give the plaintiff a right to sue. It has two component elements, firstly, the wrongful act or omission of the defendant which gives the plaintiff his reason to complain; and secondly, the consequent damage. See: Oduntan V. Akibu (2000) 7 SC (Pt.11) 106; Messrs Nu Sheep v. The M.V. “S. Araz” (2000) 12 SC (Pt.1) 164. Per UCHECHUKWU ONYEMENAM, J.C.A
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
MASSOUD A. OREDOLA Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
1. EKITI STATE INDEPENDENT ELECTORAL COMMISSION
2. MRS. CECELIA BOSEDE ADELUSI
3. CHRISTOPHER BAMIDELE OLOJE
4. CHIEF SOJI OLOKETUYI
5. CHIEF REMI OLOWOLOBA
6. ALH. ABDURAHEEM COKER
7. GOVERNOR OF EKITI STATE
8. ATTORNEY-GENERAL OF EKITI STATE
9. EKITI STATE HOUSE OF ASSEMBLY Appellant(s)
AND
1. PEOPLES DEMOCRATIC PARTY (PDP)
2. CHIEF BOLA OLU OJO Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A., (Delivering the Leading Judgment): This appeal is against the decision of High Court of Justice of Ekiti State sitting at Ado-Ekiti, delivered on 2nd February, 2012 in Suit No.: HAD/196/2011. In the judgment contained at pages 196 – 218 of the record, the learned trial Judge resolved all the issues formulated in favour of the Respondents as claimants at the lower court. All reliefs were equally granted as sought in the Originating Summons.
Dissatisfied with the decision, the Appellants initiated this appeal by filing a Notice of Appeal on 3rd February, 2012 which contained 3 grounds of appeal. See pages 217 to 219. Additional grounds of appeal containing 6 grounds were deemed filed and served on 23rd May, 2012 by the order of this court.
The facts as relevant to this appeal are that, the Respondents herein commenced an action at the lower court by an Originating Summons dated and filed 28th September, 2011. The Summons, the supporting affidavit, the written address and the accompanied documents are found at pages 1-48 of the record. The Appellants upon receipt of the Originating processes filed a counter-affidavit of 7 paragraphs with a written address. See pages 122-132 of the record. Thereafter the Respondents filed a reply to the counter affidavit and attached several documents. See pages 138 -148 of the record. The Appellants also reacted to the reply to the counter-affidavit by filing a further counter affidavit with several documents attached. See pages 163 -176 of the record. Also filed was a further reply to further counter affidavit. See pages 177 – 181 of the record.
Consequent upon the nullification of the election of Engr. Segun Oni as Governor of Ekiti State on 15th October, 2010 and the swearing in of Dr. Kayode Fayemi as the Governor in his place; the latter by a press release issued on 29th October, 2010 and signed by his Senior Special Assistant Media dissolved all the boards of parastatals in Ekiti State including the Ekiti State Independent Electoral Commission.
On 7th and 14th June, 2011, the 7th Appellant appointed the 2nd – 6th Appellants as members and chairman of the 1st Appellant respectively, after they had been screened and confirmed by the 9th Appellant. The Respondents had contended at the lower court that the 2nd – 6th Appellants were ineligible to be members and chairman of the 9th Appellant as they were card carrying members or sympathizers of registered political parties.
In all the Respondents in support of their averments attached 5 documents marked as Exhibits A, B, C, D and E. Exhibits A, B, C and D are photocopies of alleged curriculum vitae of the 2nd – 6th Appellants respectively. Exhibits E is a photocopy of a letter written by Respondents’ solicitors to the clerk of 9th Appellant. On their own the Appellants attached 5 Exhibits namely, Exhibits EK1 , EK2, EK3 , EK4 and EK5. Exhibits EK1, EK2 and EK3 are certified true copies of curriculum vitae of 2nd, 4th and 5th Appellants. Exhibit EK4 is the resignation letter of 6th Appellant and Exhibit EK5 – letter from the Respondents on the issue of local government election.
Upon the grounds and additional grounds of appeal, parties in accordance with the rules of this court exchanged their briefs and formulated their respective issues.
Both parties distilled 5 issues respectively for the hearing and determination of the appeal. The Appellants’ 5 issues are as set out hereunder:
1. “Whether the learned trial Judge was not wrong by placing reliance on uncertified public documents attached to the Affidavit in support of the Originating Summons and came to the conclusion that the 2nd to 6th Appellants were card carrying members or sympathizers of Registered Political parties, and whether the invocation of sections 89(1)(a), 90(1)(a) and 167(d) of the Evidence Act against the Appellants is justified and valid; having regard to the facts and circumstances of this case.
2. Whether the learned trial Judge was right when His lordship held that the provisions of Ekiti State Independent Electoral Commission Law that set out qualifications for members to be appointed to the 1st Appellant are inconsistent with the relevant provisions of the 1999 Constitution of the Federal Republic of Nigeria and whether the said Constitutional provision has covered the field in that respect.
3. Whether the learned trial Judge was not wrong when His lordship ignored the Certified True Copies of the curriculum vitae attached to the counter affidavit of the Appellants and preferred the uncertified photocopy of curriculum vitae attached to the Originating Summons to grant the declaratory reliefs sought by the Respondents.
4. Whether the learned trial Judge was correct by granting the declaratory reliefs sought by the Respondents, in the face of conflicting affidavit and documentary evidence placed before the court without resolving the conflicts by calling oral evidence.
5. Whether the action of the Respondents is not statute barred and liable to be dismissed having filed same outside three months from the time the cause of action accrued.”
The Respondents’ 5 issues are as follows:
1. “Whether the learned trial Judge was not right in holding Exhibits A, B, C &, D admissible in law and placing reliance on them, having regards to the clear provisions of sections 89(1)(a) and 90(1) of the Evidence Act, 2011.
2. Whether the learned trial Judge was not right in holding that paragraph 14(2) of the 3rd schedule of the 1999 Constitution (as amended) should be applicable to Ekiti State Independent Electoral Commission Law, 2001 having regards to the doctrine of covering the field.
3. Whether the learned trial Judge was not right in granting the declaratory reliefs on the strength of the Respondents’ uncertified true copies (Exhibit A, B, C, D and E) which he preferred as against the so called certified true copies, (Exhibits EK1 – EK3) attached to the Appellants counter – affidavit
4. Whether the learned trial Judge did not approach and consider the affidavit evidence and exhibit before him correctly before granting the declaratory reliefs in favour of the Respondents when there was no irreconcilable conflicts that could have warranted calling for oral evidence.
5. Whether the action of the Respondents is statute-barred and liable to be dismissed having not initiated same within three months from the date the cause of action rose (sic).”
On 23rd January, 2013 when the appeal came up for hearing learned counsel for the parties identified their respective briefs. Before the appeal was taken Mr. Obafemi Adewale drew the attention of the court to the Respondents’ preliminary objection to the appeal.
He referred to the grounds for the objection, the issue for determination and the argument on the issue as contained at pages 2 – 5 of the Respondents brief of argument. He urged the court to uphold the objection and to dismiss the appeal.
In response, the Appellants answered the Respondents’ preliminary objection at pages 2-9 of the Appellants’ reply brief. The Appellants urged the court to discountenance the preliminary objection and determine the appeal on the merit.
Thereafter the appeal was heard. Learned counsel to the parties adopted and relied on their respective briefs property filed and exchanged. The Appellants filed additional list of authorities. See: Jacob v. Att. General Akwa Ibom State (2002) FWLR (Pt.86) 578 at 591; Ogunozee v. State 5 S.C.E.J.E. 530. Learned counsel for the Respondents by a letter filed in the court forwarded a list of additional authority on 13th February, 2013. The authority listed is: B.A.T. (Nig) Ltd. v. Int’l Tobacco Co. Plc (2013) 2 NWLR (pt.1339) 493 at 520 -527. While the Appellants urged the court to allow the appeal the Respondents urged the court to dismiss the appeal.
I shall determine the preliminary objection first before the appeal.
The grounds of the Preliminary objection are as follows:
1. “The current appeal is already spent in view of the judgment of Ekiti State High court in Suit No; HAD/121/2010 and Appeal No; CA/EK/34/2012.
2. The locus of the Appellants is already eroded by the said judgment.
3. The Appellants have been caught up by the doctrine of lis pendens having been appointed pendent lite.
4. The appeal is incompetent and the court lacks the jurisdiction to entertain same.”
The sole issue distilled by the Respondents for determination in the preliminary objection is “whether the present appeal is not liable to be dismissed”.
The learned counsel for the Respondents submitted that the appeal has become academic as all the issues raised therein are already spent by reason of the High Court of Ekiti State’s judgment in suit No: HAD/121/2010 – General Kayode Oni (Rtd) & 4 Ors. v. Governor, Ekiti State & Anor. In the said judgment the learned trial Judge declared that there was no vacancy in the commission (1st Appellant) to which the 7th and 8th Appellants could appoint the 2nd – 6th Appellants to occupy. Learned counsel noted that the decision of the lower court in the case referred to is on appeal before this court. In submitting that the appeal is therefore incompetent, being academic and that this court lacks the jurisdiction to hear the same, learned counsel cited plethora of authorities thus: State v. Azeez (2008) 14 NWLR (pt.1108) 439 at 485; Agbakoba v. INEC (2008) 18 NWLR (pt. 1119) 489 at 546; Abubakar v. Yar’Adua (2008) 4 NWLR (pt. 1078) 465 at 497; Amanchukwu v. F.R.N. (2009) 8 NWLR (Pt.1144) 475 at 482.
To buttress this position, learned counsel noted that there is only one Independent Electoral Commission in Ekiti State created by Section 198 of the 1999 of the Federal Republic of Nigeria. At paragraphs 3.05 -3.10, page 3 of the Respondents’ brief: the learned counsel highlighted facts as to why by the decision of the lower court in Suit No: HAD /121/2010 – Oni & 4 Ors. v. Governor, Ekiti State & Anor. (Supra), the present appeal has become spent and academic. He referred to Amaechi v. INEC (2008) 5 NWLR (pt. 1080) 227 at 445.
The Respondents urged the court to uphold the preliminary objection and dismiss the appeal.
In response the learned counsel for the Appellants submitted that the case of Kayode Oni v. Governor of Ekiti State pending before this court as Governor of Ekiti State & Anor v. General Kayode Oni (Rtd) & 4 Ors, cannot erode the Appellants’ right of appeal as the parties and issues that arose for determination in the aforementioned case is not the same as in the instant appeal.
Learned counsel further submitted that the determination of the instant appeal will not in any way affect the pending appeal in Governor of Ekiti State & Anor. v. General Kayode Oni (Rtd) & Ors since this court will determine different issues of law in the two appeals which also have different parties.
The Appellants urged the court to hold that the preliminary objection is devoid of merit, unsustainable and constitutes gross abuse of court process.
On the academic nature of a matter, NIKI TOBI, J.S.C. opined thus:
“A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the Plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity……”
See: Plateau State v. Attorney General of the Federation (2006) All FWLR (pt.305) 590 at 646.
An appeal is academic when it is theoretical, specifically when it has no practical or immediate useful value. The appeal hangs in the realm of the abstract being speculative, hypothetical, conjectural or suppositional. The appeal is not actual, factual or real so that in the event that the court gives judgment in favour of the Appellant, he will have no legal fruit to harvest and having no legal benefit ensuing from the appeal.
The simple question I need to answer here is: Is there any legal benefit to the Appellants in the event that this court allows this appeal while dismissing Appeal No: CA/EK/34/2012, Governor of Ekiti State & Anor. v. General Kayode Oni (Rtd) & 4 Ors? In Governor of Ekiti State & Anor v. Oni & 4 Ors., the Appellants appealed against the decision of the lower court which declared that there was no vacancy in Ekiti State Independent Electoral Commission when the 2nd – 6th Appellants in the instant appeal were appointed by the 7th & 8th Appellants. I want to note that the 7th and 8th Appellants are the Appellants in Appeal No: CA/EK/34/2012, Governor Ekiti State & Anor. v. General Kayode Oni (Rtd) & 4 Ors. I also want to note that the 2nd – 6th Appellants in the instant appeal were neither parties in Suit No: HAD/121/2010 nor the ensuing appeal in Appeal No: CA/EK/34/2010.
I will also observe that in the event that this court upholds the decision in suit No: HAD/121/2010 which means the dismissal of Appeal No: CA/EK/34/2012, the import will be that there is no vacancy in Ekiti State Independent Electoral Commission as the Constitutional tenure of General Kayode Oni (Rtd) & Ors. would have still been subsisting. It is to this extent that the facts is on all fours with the case of Amaechi v. INEC (2008) 5 NWLR (pt.1080) 227, referred to by the Respondents’ counsel.
However, in the instant appeal the Appellants’ grouse is that the lower court held that the 2nd – 6th Appellants’ appointments to Ekiti State Electoral Commission (1st Appellant) by the 7th and 8th Appellants after their confirmation by the 9th Appellant cannot stand because the said 2nd – 6th Appellants are members or sympathizers of political parties contrary to the requirement of the law.
This is to say that the law disqualifies the 2nd – 6th Appellants as competent persons to be appointed to serve in the commission (1st Appellant). In the event therefore that the instant appeal is allowed the 2nd – 6th Appellants would have been cleared and declared qualified by law to serve not only in the commission (1st Appellant) but also in any commission or establishment that bars members or sympathizers of political parties from serving in them.
So whereas; the outcome of Appeal No: CA/EK/34/2012 will determine the vacancy of the 1st Appellant, the decision in the instant appeal will determine the legal right and political position of the 2nd – 6tn Appellants.
From my analysis so far, I am of the view that, the determination of this Preliminary Objection is based on speculations, suppositions, hypothetical and purely conjectural facts about the outcome of Appeal No:
CA/EK/34/2012 and the instant appeal. This, in my opinion renders the Preliminary objection academic and incompetent as the courts are forbidden from deciding hypothetical or speculative matters. Courts of law are not courts of speculations.
I also want to note that the record of the lower court in suit No: HAD/121/2010 is not before this court. The Appellants argued that the issue of lis pendis does not form part of the issues that arose from the trial court in this appeal. The court is left at sea and being led by the Respondents to speculate on what could be the content of the judgment of the lower court. The judgment of the lower court is not in any way before this court, either as forming part of the record or part of the processes filed in this appeal. This court and indeed any appellate court have no jurisdiction to make findings on issues outside the record of appeal. See: Nwora v. Nwabunze (2012) All FWLR (pt.613) 1824 at 1836. For this reason also, I hold that the preliminary objection ought to be discountenanced and it is discountenanced.
In the event that I am wrong in holding this view, I shall determine this preliminary objection on its merit, I proceed.
Having earlier stated the likely outcome of Appeal No: CA/EK/34/2012 and the instant appeal, I shall determine the academic nature of the instant appeal based on the legal effect or benefit of the presumed outcome of the duo appeals. In the event that Appeal No: CA/EK/34/2012 is unsuccessful, the legal effect is that the Commission (1st Appellant) is not vacant and as such no person or persons (2nd – 6th Appellants inclusive) can validly be appointed into the commission until the current running tenure extinguishes. The legal effect of the Respondents’ presumed outcome of the instant appeal is that the 2nd – 6th Appellants are members and sympathizers of political parties and as such disqualified by law for appointment to serve in the commission (1st Appellant) or any other commission or establishment with same legal disqualification.
The legal benefit of the instant appeal is therefore not limited to the outcome of Appeal No: CA/EK/34/2012 but extends to their subsequent or other appointments in bodies with related legal disqualification as the 1st Appellant. The legal benefit of the instant appeal put in another way, is that in the event that this court upholds the decision that 1st Appellant is not vacant; then the appointment of 2nd – 6th Appellants will be invalid but the 2nd – 6th Appellants will not be barred from being appointed into either 1st Appellant when it is vacant nor into any other commission has stipulated that members or sympathizers of political parties are disqualified. So while the decision of Appeal No: CA/EK/16/2012 (instant appeal) if dismissed, may permanently seat the appointment of the 2nd – 6th Appellants into the commission even when the current tenure is over; it will also render them ineligible for appointment into any commission that disqualifies members or sympathizers of political parties; but the appeal if allowed, will leave the door open for the 2nd – 6th Appellants for future appointments into either the commission (1st Appellant) or other similar commissions.
In conclusion, it is my view that the outcome of the instant appeal notwithstanding the outcome of Appeal No: CA/EK/34/2012 has legal benefit and utilitarian value to the 2nd – 6th Appellants and all the Appellants indeed.
I therefore hold that; Appeal No: CA/EK/16/2012 is not academic but competent. Consequently, the preliminary objection lacks merit. It is hereby overruled and I discountenance same.
In yet another hurdle, before I start the resolution of the issues, the Appellants had in their reply brief urged the court to hold that the issues formulated by the Respondents are incompetent. They submitted that the issues do not flow from the grounds of appeal and therefore urged the court to discountenance them. They cited a number of authorities in support.
I have carefully read the issues formulated by the Respondents. The issues largely flow with the issues raised by the Appellants and have the same import except for phraseology. I observed however, that the Respondents in their brief, made submissions that are not borne out of the issues they raised. While it is not correct therefore to say that the Respondents’ issues as distilled do not arise from the grounds of appeal, the Respondents’ brief contains arguments that are out of tune with the spirit of the appeal. To avoid undue technicality, I will discountenance the extraneous arguments made on the issues. For this, I overrule the objection of the Appellants as to the issues formulated by the Respondents.
The issues as formulated by both parties are pregnant for the same meaning as their resolutions will have the same effect. I shall determine this appeal based on the issues as formulated by the Appellants. Issues 1 and 3 were argued together by the Appellants. Accordingly, I shall resolve the 5 issues 1, 2, 3 and 4.
ISSUE 1
The learned counsel for the Appellants quoted relevant portions of the learned trial Judge’s judgment at pages 206 – 208 of the record. He contended that the learned trial judge having found that Exhibits A – E were public documents was wrong to have admitted them by virtue of sections 89(a)(i) and 90(i) of the Evidence Act. It was the learned counsel’s further contention that the lower court was wrong in invoking section 167(d) when Notice to produce envisaged under section 89(1)(a) was not issued. He urged the court to hold that sections 89(1)(a) and 90(1)(a) of the Evidence Act are not applicable to this case. Rather he contended that applicable to the case are sections 89(e) and (f) and 90(1)(c) of the Evidence Act.
Learned counsel submitted that under no condition or situation is any secondary evidence of public document admissible except it is the certified true copy of same. He quoted extensively the decision of Niki Tobi, J.S.C. on the admissibility of secondary evidence of public document. See Araka v. Egbue (2003) 7 S.C. 75 at 81 – 85.
Appellants prayed the court to hold that Exhibits A – E were wrongly admitted and therefore ought not to be accorded any probative value. They urged the court to discountenance the exhibits and to resolve the issues in favour of the Appellants.
In response the learned counsel for the Respondents conceded that Exhibits A – E were uncertified photocopies of public documents but that the learned trial Judge was right to have relied on section 89(a) (i) and Section 90(1)(a) of the Evidence Act 2011 to admit them. He also contended that section 167(d) of same Act could be invoked to support the presumption that the 9th Appellant withheld the certified true copies deliberately as the production thereof would have been unfavourable to the Appellants if produced.
Furthermore the learned counsel for the Respondent said the case of Araka v. Egbue (2003) 7 S.C. 75 as per Niki Tobi is distinguishable in that the Respondent had applied to 9th Appellant for certified true copies but which it denied them.
He also submitted that section 89(a)(1) applies to both public and private documents and so section 167(d) comes into play.
Learned counsel urged the court not to interfere with the findings of the lower court and to resolve the issues in favour of the Respondents.
In their reply brief, the Appellants merely reargued and re-emphasized the arguments in their brief of argument.
From the judgment of the lower court and the submissions of parties it is certain beyond per-adventure that Exhibits A – E are public documents. Now if public documents, the contentions are; what type or types of secondary evidence are admissible to prove them; and what sections of the Evidence Act are relevant in determining their proof by secondary evidence.
Niki Tobi, J.S.C. in Araka v. Egbue (2003) 7 5.C.75 seems to have brought to rest most issue that arise with the nature of secondary evidence that is required to prove public documents. I shall therefore be quieting him extensively in this judgment.
The learned trial judge held that Exhibits A – E were public documents by virtue of section 102(a) and (b) of the Evidence Act 2011. He added that it is settled that only a certified as true copy of a public document properly issued by a public officer that is admissible in evidence under sections 102 and 104 of the Evidence Act, 2011. The learned trial Judge noted that Exhibits A – E were photocopies and equally uncertified and therefore not ordinarily admissible in law as secondary evidence of public documents. Unequivocally, I uphold this as the position of the law which is to say; in the case of public documents the only type of secondary evidence permissible is a certified true copy of the document and none other. See: Minister of Lands Western Nigeria v. Dr. Azikwe (1969) 1 All NLR 49, Araka v. Egbue (2003) 7 S.C. 75.
However, the learned trial Judge did not settle on this position of the law, he made a quick shift and relied on the uncertified public documents to enter judgment in favour of the Respondents. The learned trial Judge noted and held as follows:
“It is the contention of learned counsel for the claimants that under section 89(a)(i) of the Evidence Act the claimants can produce any secondary evidence of the documents. Section 89(a)(i) of the Evidence Act provides as follows;
“89 Secondary evidence……………”
It should be noted that Ekiti State House of Assembly is a party to this case. In my humble opinion, secondary evidence envisaged in section 89(a)(i) may not be certified copy of the document. I am fortified in this regard by the provision of section 90(1)(a) of the Evidence Act (supra) for the purpose of clarity, the provision of the section is set out as follows:-
” 90(i)…………………………….
(a) ……………………………….
In view of the above provisions of the Evidence Act, uncertified photocopies of public documents as in this case is admissible. Once the claimants applied for certified true copies of the documents and they were denied, by virtue of section 91(1)(a) any secondary evidence is admissible. Section 90(1)(a) is distinguishable from section 90(1)(c) which specifically provided for certification. No doubt as I earlier stated in this judgment, the House of Assembly in whose custody are the original copies of the said documents is the 9th defendant in the case.”
The trial court in the circumstances of the case relied on sections 89(a)(i) and 90(1)(a) to hold that photocopies of public documents are admissible as secondary evidence. According to the learned trial Judge the peculiar facts are that the Ekiti State House of Assembly was a party to the suit and by Exhbit E, it was given notice to produce Exhibits A – D being a party in possession of the originals. The lower court held categorically that section 90(1)(c) of the Evidence Act, 2011 did not apply to the case. Before I come to the relevant sections of the Evidence Act that are applicable, let me first examine Exhibit E and its import. This is necessary for the fact that the Appellants had argued that no notice to produce was given to them as required by the Law.
Exhibit E found at page 38 of the record is dated 9th September, 2011. It is an application for Certified True Copies of the Curriculum Vitae of the Chairman and members of the Ekiti State Independent Electoral Commission at their screening, pursuant to the freedom of Information Law, 2011. Exhibit E preceded the originating summons which was filed on 28th September, 2011. It was pursuant to the Freedom of Information Law and not related to the suit subsequently instituted by the Respondents via above referred Originating summons. Section 89(a)(i)(ii) provides that:
“Secondary evidence may be given of the existence, condition or contents of a document when –
(a) the original is shown or appears to be in the possession or power-
(i) Of the persons against whom the document is sought to be proved, or
(ii) Of any person legally bound to produce it, and when after the notice mentioned in section 91, such person does not produce it.”
The notice mentioned is provided for in section 91 of the Evidence Act. The learned trial judge relied on
Section 91(a) which provides thus:
91 “provided evidence of the contents of the documents referred to in section 89(a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to a legal practitioner employed by such party, such notice to produce it as is prescribed by law; and if no notice to produce is prescribed by law then such notice as the court considers reasonable in the circumstances of the case.
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the court thinks fit to dispense with it –
(a) When the document to be proved is itself a notice”
It is correct that the originals of Exhibits A – E are in the possession of the 9th Appellant. However while the proof of Exhibits A – D is against the 2nd – 6th Respondents; the proof of Exhibit E is against the 9th Appellant. This distinction is necessary to know the sub paragraphs of sections 89, 90 and 91 that are applicable in this case. It is true that Ekiti State House of Assembly is a party but it is not the person Exhibits A – D are sought to be proved against. The Respondent sought to prove by Exhibits A – D that the Curriculum Vitae submitted during screening by the 2nd – 6th Appellants disclosed that they were members and sympathizers of political parties.
Accordingly, section 89(a)(i) is not the relevant provision for the use of secondary evidence to prove Exhibits A – D but it is relevant for the proof of Exhibit E. Again the 2nd – 6th Appellants are not the persons legally bound to produce Exhibits A – D, rather it is the 9th Appellant that is legally bound to produce Exhibits A – E. If we follow this line of reasoning, the provisions of section 89(a)(i) (ii) will be relevant to prove Exhibit E by secondary evidence. But this is not all. We must retain the memory that Exhibits A – E are public documents which the law has stipulated what secondary evidence is admissible in respect thereof. Before I zero in on this, let me determine whether Exhibit E qualifies as notice to produce as prescribed under section 91 of Evidence Act.
Notice to produce presupposes requires for production. It is therefore a party’s written request that another party provide specified documents or other tangible things for inspection, copying or use by the party requesting at the trial or on demand. Exhibit E is an application requesting the 9th Appellant to make available Exhibits A – D to the Respondents for their personal use by reason of their right of freedom of information.
It is not therefore a notice to produce as provided for by section 91 as referenced in section 89(a)(ii) of the Evidence Act. Accordingly, I hold that the 9th Appellant was not by Exhibit E given notice to produce Exhibits A – D. it follows that there was no notice on the party to produce Exhibits A – D and as such section 167(d) of the Evidence Act was wrongly invoked by the learned trial court.
I shall now return to Exhibits A – D which I have agreed with the learned trial Judge are public documents. I had also stated that the 9th Appellant was the party legally bound to produce Exhibits A – D if it had been given notice to produce in accordance with the law. Also that the secondary evidence of Exhibits A – D was to be used against the 2nd – 6th Appellants. I had also stated the principle of law guiding the admissibility of secondary evidence of a public document. I will now consider the exception which the judgment of the lower court seems to raise. The learned trial Judge held that as in this case, where a claimant has applied for a certified true copy of a document and it has been denied, then by virtue of Section 91(i) of the Evidence Act any secondary is admissible. Reason being that section 90(1)(a) is distinguishable from section 90(1)(c).
The bull’s eye of the trial court’s decision is that holding otherwise will work hardship on the claimant who may have by the law fulfilled his obligation in law by applying for a certified true copy of the document he requires.
The learned trial judge wondered “where then would the claimant get certified true copies when the people having the documents in their custody refused to release them ………. “See pages 208 last line to page 209 lines 1 – 9. It does really raise issue of concern but the principle of law as regards rules of interpretation and the position of the law as it relates to the only admissible secondary evidence of public document have been crystallized. A judge must abide by the well set principles of law and rules of interpretation when faced with the resolution of any matter. It is not permissible for a judge to go outside a clear provision of a statute to seek for what he thinks is fair in the circumstances of a case. The law is about justice. Justice does not stop at what is fair given the facts and circumstances of a case but goes beyond fairness in a given situation to include the proper administration of laws.
The apex court facing a similar situation observed as follows:
“The fulcrum or crux of the submission of learned counsel for the appellant is that section 97(2)(c) should be interpreted to accommodate a situation where the original of a public document is lost and cannot be found or destroyed and is no longer in existence. Will such a construction vindicate the well established cannon of statutory interpretation in our jurisprudence? Let me examine a bit of the law in the area of statutory interpretation. The duty of the court is to interpret the words contained in the statute and not to go outside the words in search of an interpretation which is convenient to the court or to the parties or one of the parties. Even where the provisions of a statute is hard in the sense that they will do some inconvenience to the parties, the court is bound to interpret the provisions once they are clear and unambiguous. It is not the duty of the court to remove the chaff from the grain in the process of interpretation of a statute to arrive at favourable terms for the parties outside the contemplation of the lawmaker. That will be tantamount to traveling outside the statute on a voyage of discovery. This court cannot embark upon such a journey. The primary function of the court is to search for the intention of the lawmaker in the interpretation of a statute. Where a statute is clear and unambiguous, as it is in this case, the court in the exercise of its interpretative jurisdiction must stop where the statute stops. In other words, a court of law has no jurisdiction to rewrite a statute to suit the purpose of one of the parties or both parties. The moment a court of law intends to rewrite a statute or really rewrites a statute, the intention of the lawmaker is thrown overboard and the court changes place with the lawmaker. In view of the fact that that will be against the doctrine of separation of powers entrenched in the Constitution, a court of law will not embark on such unconstitutional act. In Adewunmi v. A.G. Ekiti State (2002) 2 NWLR (Pt. 751) 474,
Wali, J.S.C. said at page 512; ………………. under our jurisprudence, the presumption is that ill-considered or unwise legislation will be corrected through democratic process. A court is not permitted to distort a statute’s meaning in order to make it conform with the judge’s own views of sound social policy.”
See: Araka v. Egbue (Supra) pages 85.
I must observe though, that the law did not leave a claimant helpless when he has property issued a notice to produce and the party concerned refuses to produce the document. In such a case, the claimant can apply for the issuance of subpoena duces tecum to compel the concerned party to produce the Certified True Copies of the documents and where he still fails, then the claimant can commence committal proceedings against the party. This is not the position in the current appeal where I have held that the 9th Appellant was not given notice to produce as required by law.
The learned trial Judge rightly observed that Section 90(1)(a) is distinguishable from Section 90(1)(c). The Supreme Court distinguished the provisions of Section 90(a) and 90(1)(c) of the Evidence Act 2011 formerly Sections 97(2)(a) and Section 97(2)(c) and held that Section 97(2)(a) is a general provision applicable to private documents while Section 97(2) is a specific provision meant for public documents alone. See: ARAKA V. EGBUE (Supra) at 82 lines 10 – 40 Tobi, JSC lucidly stated as follows:
“It is clear from the provision of Section 97(2)(c) that the only acceptable secondary evidence of a public document is a certified copy of the document. The subsection has put the position precisely, concisely and beyond speculation or conjecture by the words “but no other kind of secondary evidence is admissible”. This provision is clearly in contradistinction to the provision of section 97(2)(a) of the Act which admits any secondary evidence of the contents of the document. In my humble view, section 97(2)(a) anticipates private documents with the very vague meaning of section 110 of the Act. In other words, while section 97(2)(c) provides for public documents, Section 97(2)(a) provides for private documents, which section 110 simply defines as all other documents which are not public documents… ..There is also the related issue and it is that where a court of law is exposed to two provisions; one general and the other specific, the court will fall on the specific provision, in the event of an apparent conflict.”
From the foregoing, it is clear that although Section 90(1)(a) and 90(1)(c) are distinguishable, the trial court was in error when it held that the applicable Section was Section 90(1)(a) and that by Section 91(1) once a claimant is denied Certified True Copy of a public document after application, uncertified photocopy of said public document is admissible. I hold that, the applicable Section here is Section 90(1)(c) which specifically applies to public documents being that Exhibits A – E are public documents. Even when strict compliance to this Section will work undue hardship on the person applying for the Certified True Copy, the seldom hardship will be nothing compared with the havoc unauthentic documents will wreck the society.
The object of Section 90(1)(c) of the Evidence Act must be protected by the court to preserve public documents and ensure the genuineness of the documents tendered in our courts. With our modern information communication technology, anything possible. Documents and signatures are easily manipulated to the extent that genuineness of documents can no longer be ascertained by mere observation with the eyes.
Apart from the applicability of the provisions of the Evidence Act under focus which I have decided on. I had earlier in this judgment stated that Exhibit E did not qualify as notice to produce under the law. Therefore, since the trial court’s reason for the admission of uncertified photocopies of Exhibits A – D is because the Respondents gave the 9th Appellant notice to produce for which it failed to abide, it follows that the learned trial Judge was wrong when he admitted the exhibits for this reason as there was no legal or proper notice to produce so given to the 9th Appellant.
Now to the additional authority filed by the Respondents on this issue: British American Tobacco Nigeria Ltd V. International Tobacco Company Plc (2013) 3 NWLR (Pt. 1339) 493.
I have read the authority. Reading the case without legal perception, one will quickly run with the conclusion that the court decided that generally secondary evidence of a public document attached to an affidavit does not need to be a certified true copy. I must bring to remembrance that cases are decided based on their peculiar facts and circumstances.
In the instant appeal, the case of the Respondents at the trial court is that they applied for Certified True Copies of the 2nd – 6th Appellants’ curriculum vitae from Ekiti State House of Assembly (9th Appellant) but were not given. The trial court relied on the provisions of sections 89(1)(a), 90(1)(a) and 167(d) of the Evidence Act to admit and place probative value on the photocopies of the secondary evidence of the above referred curriculum vitae attached to the affidavit in support of an Originating Summons. At the lower court the Appellants had contested and vigorously disputed the contents of the curriculum vitae which were Exhibits A-D. The Appellants had also attached to their further counter affidavit Certified True Copies of the said curriculum vitae. On appeal the Appellants’ contention is that having contested the content and attached the Certified True Copies of the secondary evidence of the curriculum vitae, the trial court ought to have: (a) preferred the CTC of the secondary evidence of Exhibits A -D; and (b) called oral evidence before entering its judgment to resolve the conflicting affidavit evidence.
In B.A.T. (Nig) Ltd V. Int’l Tobacco Co. Plc (supra), the Applicant in an Interlocutory application for joinder attached uncertified photocopies of secondary evidence of public documents as Exhibits W02 and W03 to their affidavit. The contents of the two exhibits were not disputed neither were the Certified True Copies of Exhibits W02 and W03 produced by the opposing party. The court held that the uncertified copies were admissible at that stage and in the circumstances of the case.
In the lead judgment, Mbaba, JCA at page 519 paragraph H to 520 paragraphs A-B stated thus:
“Appellant/respondent cannot raise issues of authentication of the intervener/ applicant’s right or authority over the trademark ‘Dorchester’, or question of its relationship with Gallaher Ltd, the alleged owners of the trademark at this stage, as such should be what would be expected at the trial. Also, it is premature to raise question of admissibility and/or authenticity of Exhibits W01, W02 and W03 – documents produced by the intervener/applicant as………………..
For the purpose of the application, exhibits W01, W02 and W03 must certainly be photocopies, and cannot be expected to be certified true copies, since the applicant was expected to photocopy the originals of those documents given to them by the issuing registry, as exhibited copies for this application. One cannot expect the applicant to have taken the documents (photocopies) to the issuing registry for certification before using the same for this application.”
The court’s decision is that the admissibility of the documents attached to the affidavit by their nature could not be challenged at the interlocutory stage. So the court in determining the interlocutory application for joinder did not concern itself with the issue of the admissibility of the uncertified exhibits as that did not arise.
This understanding is supported by the authorities Mbaba, JCA relied on in arriving at his decision.
At page 521 paragraph D, he quoted thus:
“Documents attached to affidavit must not be objected to until the substantive action comes up for hearing”
See: C.R.P.D. & Invest. Co. Ltd v. Obongha (2000) 8 NWLR (Pt. 670). See also Ojuwa v. Nzeogwu (1996) 1 NWLR (Pt.427) 713 at 722 where this court held thus:
“On a case decided on affidavit evidence, where the attached exhibits are not formally tendered as such in evidence and the contents are not disputed, they cannot be dismissed by a wave of hand on mere technicality”
The distinguishing factors between the instant appeal and B.A.T. (Nig.) Ltd V. Int’l Tobacco Co. Plc (supra) are brought home by the above decisions which I must observe were made before the apex court’s decision in Araka V. Egbue (Supra). In B.A.T (Nig) Ltd (supra); the contents of Exhibits W02 and W03 were not disputed and again the exhibits were attached to an affidavit in support of an interlocutory application. Also the court was not confronted with the certified copies of Exhibits W02 and W03 by the opposing party. In the instant appeal, the exhibits which are photocopies of uncertified public documents were attached to an affidavit in support of an Originating Summons which is a substantive suit. Again the contents were highly disputed and the opposing party produced Certified True Copies of the Exhibits in contention.
The instant appeal is certainty not an appropriate case to admit such greatly disputed Exhibits A – D attached to an affidavit in a substantive suit. It is clear that the facts and circumstances of the case of B.A.T. (Nig.) Ltd (Supra) are distinctly different from the present appeal. The decision therein is therefore not relevant to this appeal. I hold that the case was cited out of con by the Respondents’ counsel and as such cannot sway the mind of this court positively in favour of the Respondents.
In all, I hold that the lower court was wrong in admitting uncertified photocopies of public documents under any guise. Exhibits A – E ought to be and is hereby discountenanced. As such no probative value is to be ascribed to them. I therefore resolve this issue in favour of the Appellants.
ISSUE 2:
In his submission, the learned counsel for the Appellants referred to the provisions of Section 4 and 5 of Ekiti State Independent Electoral Commission Law, 2001 as amended, paragraphs 3 and 4 of the Third Schedule part 11 of the 1999 Constitution to submit that the Ekiti State Independent Electoral Law, 2001 as amended is not inconsistent with the Constitution or any Acts of the National Assembly and therefore valid. Counsel argued that paragraph 3 of the Third schedule to the Constitution part (II) does not provide for the qualification of chairman and members of Ekiti State Independent Electoral Commission for which the 9th Appellant can make valid laws on.
Learned counsel further submitted that O.S.I.E.C. V. Action Congress (2011) All FWLR (Pt. 567); A.G Abia State v. A.G. Federation (2002) FWLR (Pt. 101) 1419 relied on by the learned trial Judge ought to be construed in favour of the Appellants.
Furthermore relying on INEC V. Musa (2003) 3 NWLR (Pt. 806) 72, learned counsel urged the court to hold that the Constitution does not cover the field. He prayed the court to resolve the issue against the Respondents.
In response, the learned counsel for the Respondents invited the court to have a community reading of Sections 156(1)(a), 200(1)(a) of the Constitution of the Federal Republic of Nigeria (First Alteration) Act No 1 of 2010 and paragraph 14(2) of the Third Schedule to the Constitution to conclude that: a member of Independent Electoral Commission (State and National) shall not be a member of a political party; and shall be a person of unquestionable integrity.
On the fact that the court should make broad interpretation of statutes, he referred to N.U.R.T.W v. R.T.E.A.N (2012) 10 NWLR (Pt. 1307) 170, Elelu Habeeb v. A.G. Federation (2012) 13 NWLR (Pt. 1318) 423.
He finally urged the court to hold that the provisions of Section 200(1) (a) (First Alteration) Act No. 1 of 2010, 1999 Constitution covered the field as to the qualification of members of State Independent Electoral Commission not withstanding its omission in Sections 4 and 5 of Ekiti State Independent Electoral Commission Law, 2001.
He prayed the court to resolve the issue in favour of the Respondents.
The Constitution of the Federal Republic of Nigeria is the basic norm of the land. By section 1(3) of the 1999 Constitution (as amended), the provisions of the Constitution are superior to all provisions made in any other Act or Law. The validity of all laws is tested against this basic norm. In order of hierarchy and precedence, we have the provisions of the Constitution, the law made by the national Assembly and then, the law made by the House of Assembly of a State. The Constitution is the law from which all other laws in the land derive.
It is correct as submitted by the learned counsel for the Respondents that before the originating process in the lower court was filed on 28th September, 2011, the constitution of the Federal Republic of Nigeria (First Alteration) Act No. 1 2010, which has its commencement date as 16th July, 2010 was in operation. In the First alteration, Section 200(1)(a) was altered at No 21 of the First Alteration Act No. 1 of 2010 to read:
No. 21:
“Section 200(1)(a), line 2 of the Principal Act is altered, by inserting immediately after the word “Assembly”, the words, “provided that a member of any of the said bodies shall not be required to belong to a political party and, in the case of the State Independent Electoral Commission, he shall not be a member of a political party”.
This means that Section 200(1)(a), Constitution of the Federal Republic of Nigeria (First Alteration) Act 2010 now reads:
Section 200(1)
“No person shall be qualified for appointment as a member of any of the bodies’ aforesaid if –
(a) he is not qualified or if he is disqualified for election as a member of a House of Assembly; provided that a member of any of the said bodies shall not be required to belong to a political party and, in the case of the State Independent Electoral Commission, he shall not be a member of a political party”
Section 156(1)(a) (First Alteration) Act No. 2010 applies to Independent National Electoral Commission which is not our concern in this appeal.
Paragraph 14(2) of the Third Schedule to the Constitution relates to a State and Federal Capital Territory, Abuja, Resident Electoral commissioner who shall be appointed by the president and shall be a person of unquestionable integrity and less than forty years of age.
The learned trial Judge did not quote correctly when he stated that, paragraph 14(2) of the Third Schedule to the 1999 Constitution (as amended) provides that a member of the commission shall be non-partisan and a person of unquestionable integrity. See page 214 lines 4 – 7 of the record. From paragraph 14(2) of the Third Schedule to the Constitution, I see no such provision. It is Section 200(1)(a) of the Constitution (First Alteration) that provided that a member of a State Independent Electoral Commission shall not be partisan.
Indeed Sections 4 and 5 of the Ekiti State Independent Electoral Law 2001 provide for qualifications for all members of Ekiti State Independent Electoral Commission which is also provided for by section 200(1)(a) of the Constitution of the Federal Republic of Nigeria (First Alteration) Act No.1 2010. The provisions of Section 4 and 5 of the state law are not inconsistent with the provisions of the Constitution which has provided for the qualification of the members of State Independent Electoral Commission. The State House of Assembly merely legislated on the area the Constitution has provided for.
By the doctrine of covering the field, the provisions of sections 4 and 5 of Ekiti State Independent Electoral Law, 2001 (as amended) is not harmful not being inconsistent with either the Constitution or any Act of the National Assembly. The State law is a mere superabundance and must remain in doldrums and latent, only to be revived and become operative in the event that the Constitution is altered. See: A.G. Abia State v. A. G. Federation (2002) FWLR (Pt. 101) 1419; INEC v. Musa (2003) 3 NWLR (pt. 806) 72. Accordingly, the learned trial Judge erred when he declared sections 4 and 5 of the Ekiti State Electoral, Commission Law 2001, void. In clear terms, I hold that the provisions of sections 4 and 5 of the Ekiti State Electoral Commission Law are valid but must remain in abeyance until such a time the provisions of the Constitution relating to qualifications of Ekiti State Electoral Commission’s members are altered.
Consequently, I hold that the Constitution covers the field in respect of the qualification of Chairman and members of Ekiti State Independent Electoral Commission and the learned trial judge was right to have invoked the doctrine of covering the field. Issue is resolved in favour of the Respondents.
ISSUE 3:
The Appellants referred to the affidavit in support of the Originating Summons, the counter affidavit against the Originating Summons, the reply to counter Affidavit of the Respondents, the further counter affidavit of the Appellants and the further reply affidavit to the Respondents’ further counter affidavit. He also noted the uncertified public documents attached to the affidavit and the Certified Public documents attached to the further counter affidavit. See particularly pages 4 – 38; 122 – 123; 138 – 139; 163 – 174; 177 – 178.
Owing to the above, learned counsel contended that from the affidavit evidence and documents attached to them, there is no doubt that the affidavit evidence and the documents attached thereto conflict seriously. He submitted that since there is obvious conflict in the affidavit evidence, the court must have recourse to oral evidence to resolve same before giving judgment in matter. That the only exception is where there are genuine documentary evidence that support one of the affidavits in conflict and could tilt the balance in favour of the affidavit which agrees with it. See: Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135), 688; PDP V. Mohammed (2005) ALL FWLR (Pt.289) 1322 at 1337.
Learned counsel urged the court to resolve the issue in favour of the Appellants.
In response, the learned counsel for the Respondents referred to paragraphs, 5 (ii) and (iii) of the Appellants counter affidavit and Respondents’ reply to counter affidavit to submit that the lower court was right in according probative value to Exhibit E having found that paragraphs 5 (ii) and (iii) (supra) are vague and did not challenge paragraphs 6, 7 and 8 of the Respondents’ reply affidavit. The learned counsel noted that the Appellants never filed any further and better counter affidavit to counter the Respondents reply referred to above. See: pages 122 -123, 139, 210 of the record. Authorities relied on includes: Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.110) 417; John v. Blankk (1998) 6 NWLR (Pt. 555) 524; Hamza v. Lawan (1998) 10 NWLR (Pt. 571) 676; Balogun v. EOCB (Nig.) Ltd. (2007) 5 NWLR (Pt. 1028) 584.
Learned counsel urged the court to resolve the issue in favour of the Respondents.
The stem of the findings of the learned trial judge in arriving at a conclusion to grant the Respondents reliefs in their Originating Summons before him was paragraph 5(i)(ii)(iii) of the Appellants’ counter affidavit. The said paragraph reads:
5. ……………………………………..
(i) “That paragraphs 9, 10, 11, 13, 14, 16, 17, 18, 19 and 20 of the Affidavit in support of the originating summons are untrue.
(ii) That the CVs attached to the said affidavit are not a product of what they submitted to the House of Assembly.
(iii) That their enquiries at the 9th Defendants revealed that Exhibit ‘E’ attached to the affidavit in support of the originating summons is a make believe”.
Let me note that the learned trial judge did not make reference to paragraph 5(iv) which states to the effect that there was no objection from whatever quarters to their suitability for the offices prior to their appearances before the 9th Appellant and while they were on the floor of the 9th Appellant for screening. I will not delve into the import of this because in resolving this issue the questions that must be answered are: Were there conflicting affidavits and documentary evidence? If answered in the affirmative, did the lower court resolve the conflict before entering its judgment?
The law is trite that where affidavit evidence are in conflict oral evidence should be led to resolve the conflict, unless there is documentary evidence which can tilt the contradictory evidence one way or the other. see: Eimskip v. Exquisite (2003) J.S.C.N.J 317 at 341 per Niki Tobi, JSC; Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135), 688. The apex court held in Chief Atanda v. Olanrewaju (1988) 4 NWLR (Pt.89) 394; that where depositions in affidavit of opposing parties conflict, the court is not allowed to prefer one deposition to the other. In such cases, the only course open to the court in order to resolve the conflict is to take oral evidence. See also: Momah v. Vab Petroleum Inc. (2000) 4 NWLR (Pt.654) 534.
However, I will observe that the deposition which was not in any way challenged presupposes that the complaint of the Respondents was an afterthought since the 1st Respondent’s members were in the Ekiti State House of Assembly when the 2nd – 6th Respondents were screened without any form of objection on their confirmation on the ground that by their Curriculum Vitae, they were sympathizers of political parties.
In reaction to the counter affidavit, the Respondents filed a reply to counter affidavit, wherein the deponent deposed to the following facts. See paragraphs 4, 5, and 6 in particular. Paragraphs referred to state as follows:
4. “That in response to the averments in paragraph 5(1) of the counter affidavit; enclosed herewith and marked Exhibit “NJE1” is the extract of the record of proceedings of 30th September, 2009, in Petition No: EPT/EK/GOV/1/2009, Dr. John Kayode Fayemi &, Anor V. Engr. Olusegun Oni & 7 Ors, where the 6th Defendant gave evidence in support of the Petitioners, one of whom is Action Congress of Nigeria.
5. That the 4th Defendant, Chief Soji Oluketu, publicly decamped to the Action Congress of Nigeria on 25th March, 2009, and was widely reported in various national newspapers including the Nation of 26th March 2009, at page 3 thereof. A certified true copy is attached herewith and marked exhibit “NJE2″
6. That on 9th September 2011, I personally went to the office of the Clerk to the Ekiti House of Assembly to serve an application for certified true copies of the curriculum vitae of members of the 1st Defendants, i.e. Exhibit E”.
See pages 138 – 139 of the record.
The above led to the Appellants’ filing of a further counter affidavit wherein they attached Certified True Copies of the Curriculum Vitae allegedly obtained from the 9th Appellant as those submitted by the 2nd , 4th and 5th Appellants; 6th Appellant’s letter of resignation from the 1st Appellant, but said nothing about the 4th Appellant.
In further reaction to the Appellants’ further counter affidavit, the Respondents filed a Further Reply affidavit to the further affidavit. By paragraph 4 of the affidavit deposed to by 2 members of the 1st Respondent in Ekiti State House of Assembly, they maintained that the uncertified copies of the 2nd – 6th Appellants marked Exhibits A – D were those submitted by them for their screening by the Ekiti State House of Assembly.
Upon this background, the learned trial judge held thus:
“In my humbly view, I prefer the documentary evidence, that is Exhibit A – D annexed to the affidavit in support of the Originating Summons particularly the Curriculum Vitae which were signed, they gave credence to the averments in the supporting affidavit of the claimants.”
See Page 211 lines 4 – 7 of the record.
From what I have said above, it is clear that the Respondents as claimants at the lower court attached uncertified public documents (Exhibits A – D) to the affidavit in support of their Originating Summons. It is not also in dispute that the Appellants attached Certified True Copies of the same documents to their further counter affidavit. They also disowned Exhibits A – D in their counter affidavit. So before the lower court were both Certified True Copies and Uncertified Copies of the Curriculum Vitae competing for credence and probative value. Also was a deposition by the Appellants disowning the uncertified copies competing with the deposition of the two PDP members in the Ekiti House of Assembly, who maintained that the uncertified copies were the Curriculum Vitae that were submitted to the 9th Appellant for their screening.
It was very obvious therefore that the depositions in the various affidavits of the opposing parties were in conflict in material particulars. What could have ordinarily help resolve the conflict was the documentary evidence attached to the different affidavits, unfortunately, same was greatly disputed and raised serious issue of fraud being in abject conflict too. The documents were therefore not useful to tilt the contradiction to one side of the case. The only option accordingly left for the learned trial judge in order to resolve the conflict in the affidavit evidence was to call oral evidence. This, the learned trial Judge failed to do. In the circumstance, he boxed himself into a tight corner as he is not in law permitted to prefer any of the conflicting depositions.
Following the principles of law which I set out earlier, I hold that the learned trial Judge was in error when he failed to call oral evidence to resolve the conflict in the depositions in the affidavit of the parties. He was also in error when without the resolution of the said conflict he preferred the uncertified copies of exhibits (A – D) and based on it to enter judgment for the Respondents.
I therefore resolve this issue in favour of the Appellants.
ISSUE 4:
The Appellants herein on this issue invited the court to take a look at the Originating Summons and the supporting affidavit to infer that the Respondents as claimants before the trial court challenged the validity of the appointment of the 2nd – 6th Appellants as Chairman and members of the 1st Appellant. That by paragraph 7 of the affidavit in support of the Originating Summons, the 2nd – 6th Appellants were appointed on 7th and 14th June, 2012 as Chairman and members respectively.
He submitted that the effect of the above is that the cause of action accrued on 14th June, 2011 when the appointments were concluded. This being so, he referred to the Originating Summons which was filed on 28th September, 2011 to say that the action was statute barred having been filed 13 days after the expiration of three months from 14th June, 2011. He cited: Texaco Panama Inc. v. Shell P.D.C.N. Ltd (2002) 5 NWLR (Pt. 759) 209 at 241; Ethiopian Airlines v. Afribank Nig. Plc (2007) All FWLR (Pt.373) 185.
Learned Counsel urged the court to resolve the issue in favour of the Appellants and to dismiss the Respondents’ case.
The Respondents on this, contended that the Appellants’ arguments on this issue were completely misconceived, irrelevant, misleading and go to no issue. They conceded to the dates put forth by the Appellants in their arguments. However, they submitted that the effective date when the cause of action accrued is the date of swearing in when they started to function and not the date that the Ekiti State Governor announced the 2nd – 6th Appellants appointment. See: Marwa v. Nyako (2012) 6 NWLR (Pt.1296) 199.
Accordingly, the learned counsel submitted that from 11th July, 2011 when the 2nd – 6th Appellants were sworn in tilt 28th September, 2011 when the Originating Summons was filed, they were clearly within the statutory three months period granted by law.
He therefore urged the court to resolve the issue in favour of the Respondents.
This issue was raised with the leave of this court as a fresh issue on appeal. The Appellants herein are challenging the competence of the appeal on the ground that the case is statute barred, having not been commenced within three months from when the cause of action accrued.
An action is statute barred if it is instituted after the period laid down by the statute within which such action must be filed in court. See: Texaco Panama Inc. V. Shell P.D.C.N. Ltd (2002) 5 NWLR (Pt.759) 209.
A cause of action is the whole or complete set of circumstances giving rise to an enforceable claim. Therefore it consists of the fact of diverse facts which put together give the plaintiff a right to sue. It has two component elements, firstly, the wrongful act or omission of the defendant which gives the plaintiff his reason to complain; and secondly, the consequent damage. See: Oduntan V. Akibu (2000) 7 SC (Pt.11) 106; Messrs Nu Sheep v. The M.V. “S. Araz” (2000) 12 SC (Pt.1) 164.
In determining the period of limitation, the law is settled that the court should look at the Writ of Summons or the Originating Summons as in this case and the Statement of Claim or Affidavit in support of the Originating Summons with a view of determining when the wrong which gave the plaintiff his cause of action was committed. Then the date the cause of action accrues shall be juxtaposed with the date the summons was filed and calculation done to see if the case was instituted within the limitation period. See: Egbe V . Adefarasin No.2 (1987) 1 NWLR (Pt.47) 1 at 15; Ethiopian Airlines V. Afribank Nig. Plc (2007) All FWLR (Pt.373) 185.
In the instant case, by the Originating Summons and paragraphs 7 and 8 of the affidavit in support devoid undue technicalities; the Governor of Ekiti State announced the names of the 2nd – 6th Appellants as persons appointed as members and chairman of 1st Appellant on 7th and 14th June, 2011 respectively. Then on 11th July, 2011, the 2nd – 6th Appellants were sworn in to serve as Chairman and members of 1st Appellant.
The Appellants’ argument is that the cause of action accrued on 14th of June, 2011 when the appointments of the 2nd – 6th Appellants were concluded. It is based on this that he contended that the Respondents’ action at the lower court was statute barred. The question therefore is, when did the cause of action accrue in this case, was it on 14th June, 2011 when the last appointment was announced by the Government of Ekiti State or on 11th July, 2011 when the 2nd – 6th Respondents were finally sworn in.
I had stated earlier in this judgment that a cause of action is an entire set of circumstances, fact or combination of facts which give the claimant an enforceable claim. Now in the instant, at what point did the Respondents have an enforceable claim at the lower court. By 14th of June, 2011 when the 2nd – 6th Appellants’ appointment was concluded after their nomination had been confirmed by the 9th Appellant, they could not in law assume office. By the announcement of their appointment by the Governor of Ekiti State on 14th June, 2011, they were merely lying in wait to be legally empowered to assume office as Chairman and members of the 1st Appellant. Compared to those on a race, the announcement of their appointment put them at a “get set….. ready” mode, but the starter’s gun let them function had not gone and accordingly the 2nd – 6th Appellants will be swimming in illegalities to start executing the functions of the Chairman and members of 1st Appellant at that stage.
To run legally in the race, they needed to be given the “go” signal, which in this case is their swearing in. It is the oath of office that empowers them to function legally as the Chairman and members of 1st Appellant. Accordingly, the circumstances or combination of facts that gave rise to a right for the Respondents to sue at the lower court culminated at the 2nd – 6th Appellants’ swearing-in on 11th July, 2011 . The swearing-in was the handing down of the instrument of power to the 2nd – 6th Appellants to function.
I therefore hold, that the cause of action in this case arose at the commencement of the term of office of the 2nd – 6th Appellants which was marked by the date they were sworn in as they took their oath of allegiance and oath of office.
There is no dispute that the Originating Summons was filed on 28th September, 2011. By simple arithmetic then, the action was filed two months eighteen days from when the cause of action arose on 11th July, 2011. It is correct therefore as argued by the Respondents that the submissions of the Appellants on this issue was misconceived and misplaced. I hold that the action of the Respondents at the lower court was not statute barred, it was competent.
Accordingly, I resolve this issue in favour of the Respondents.
From all the issues herein resolved, the appeal substantially succeeds and is allowed. The judgment wherein the learned trial Judge relied on uncertified public documents and preferred the affidavit evidence of the Respondents amidst conflicting affidavit evidence of the parties without first resolving same by calling oral evidence cannot stand.
I hereby set aside the judgment of the High Court of Justice of Ekiti State sitting at Ado-Ekiti, delivered on 2nd February, 2012 in Suit No: HAD/196/2011 between People Democratic Party (PDP) & Anor. V. Ekiti State Independent Electoral Commission & 8 Ors.
l order that the suit be and is hereby remitted back to the Chief Judge, Ekiti State Judiciary to be re-assigned and heard by another Judge.
I make no order as to cost.
JIMI OLUKAYODE BADA, J.C.A.: I had the opportunity of reading in draft a copy of the lead Judgment of my Lord, UCHECHUKWU ONYEMENAM, J.C.A just delivered.
My Lord has dealt with the issues in this appeal meticulously and I agree with the reasons given therein as well as the conclusions reached.
The appeal has succeeded in part and it is accordingly allowed. I abide by the consequential orders made in the said lead Judgment.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the advantage of having read before now, the draft of the lead judgment just delivered by my learned brother, Uchechukwu Onyemenam, JCA. I am in full agreement with his reasoning and conclusion reached therein. I adopt the same to allow the instant appeal. I also abide by the consequential orders made therein, inclusive of the order with regard to costs.
Appearances
R. O. Balogun with H.O. AbayaFor Appellant
AND
Obafemi Adewale, O. B. Akinota, Ajide Olayemi, Joseph Ogunsemi, Ezekiel Agunbiade, Babatunde Jemilehin, Adeyemi Adewunmi, Stephen Ademuagun, and Chuba Obi-OkaroFor Respondent
