HON. BARRISTER JOSEPH EFFIONG ETENE v. HON. SAVIOUR OKON NYONG & ORS.
(2012)LCN/5605(CA)
In The Court of Appeal of Nigeria
On Thursday, the 26th day of January, 2012
CA/C/NAEA/284/2011
RATIO
TRIBUNALS: NATURE OF ELECTION TRIBUNALS
Speaking generally, Election Tribunals, created specially to hear and determine disputes arising from elections conducted in the country for various elective offices by the Constitution of Nigeria, were vested with specific jurisdiction to deal with such disputes. The Lower tribunal was established by provisions of Section 285(f) of the 1999 Constitution (as altered) and vested with exclusive original jurisdiction to hear and determine election petitions as to whether:
“(a) any person has been validly elected as a member of the National Assembly; or
(b) any person has been validly elected as a member of the House of Assembly of a State.
Like other Courts of law and tribunals created by the constitution and other statutes, the Lower tribunal’s jurisdiction is limited to that specifically conferred on it by the enabling provisions of the constitution or statutes. The learned SAN for the Appellant is therefore right when he said in his brief of argument that no court, and I add or tribunal, has the power to go outside the law creating it and vesting it with jurisdiction which is circumscribed and confined by the statute. This is a restatement of an established principle of law in Nigerian judicial practice that is very well known such that it requires no reference to a particular judicial decision in which it was laid down or restated. PER MOHAMMED LAWAL GARBA, J.C.A.
JURISDICTION: WHETHER A COURT OR TRIBUNAL HAS POWER TO CONFER ON ITSELF ADDITIONAL JURISDICTION
Consequently, a Court or tribunal created by statutes has no power and authority to confer on itself additional jurisdiction not vested in it by the enabling statute or expand the specific jurisdiction vested in it by such statutes. See AFRICAN NEWSPAPERS OF NIG. V. FRN (1935) 2 NWLR (6) 137 NWLR (6) 137; I.T.P.P. v. UINION BANK (2006) 13 NWLR (995) 483 AT 502; BARSOUM V. CLENESSY INT. (1999) 12 NWLR (632) 516 AT 530; LAWAL V. OLADOKUN (2003) 2 NWLR (804) 271 AT 288-289. PER MOHAMMED LAWAL GARBA, J.C.A.
ELECTION MATTERS: WHETHER ELECTION TRIBUNALS HAVE THE JURISDICTION TO ENTERTAIN PRE-ELECTION MATTERS
The law is now beyond argument that election tribunals like the Lower tribunal, do not have the jurisdiction to entertain, hear and decide matters or disputes which arise from pre-election activities of political parties. The jurisdiction to hear and determine issues arising from pre-election disputes reside elsewhere; in the regular Courts. See JANG V. DARIYE (2006) 2 EPR 839; DOUKPOLAGHIA V. GBORGE (1992) 4 NWLR (236) 444; AGBAKOBA V. INEC (2008) 18 NWLR (1119) 489; ODEDO V. INEC (2008) 17 NWLR (1117) 554; PDP V. ONWE (II) 1 MJSC (II) 191 AT 197-198. PER MOHAMMED LAWAL GARBA, J.C.A.
EVIDENCE: WHETHER ADMITTED FACTS IN PLEADINGS REQUIRE PROOF
I would start a consideration of the issue by saying that the learned SAN for the Appellant is right when he said that the law is that where pleadings are admitted by the party against whom they were asserted, they require no proof by evidence. The need, duty to prove or burden of proof presupposes a dispute between parties as to fact(s) contained in the pleadings of a case and so where the facts pleaded in a case are not disputed or denied, the question of proof would not arise since no issue was joined between the parties. In addition to the cases cited on the principle by the learned counsel, see OWOSHO v. DADA (1984) 7 SC 149; AKIBU V. ODUNTAN (1992) 2 NWLR (222) 210 AT 226-227; KYARI V. ALKARI (2001) 11 NWLR (724) 412; ABACHA V. FAWEHINMI (2000) FWLR (4) 533. PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
HON. BARRISTER JOSEPH EFFIONG ETENE Appellant(s)
AND
1. HON. SAVIOUR OKON NYONG
2. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. THE RESIDENT ELECTORAL COMMISSIONER CROSS RIVER STATE Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the National and State Houses of Assembly Elections Tribunal sitting at Calabar, (hereinafter to be called Lower Tribunal) delivered on the 11-11-2011 in election petition No.EPT/CR/SA/3/2011 presented by the Appellant before it. The Appellant had questioned the election conducted by the 2nd Respondent for the Bakasi State constituency, on the 26th April, 2011 and for which it declared and returned the 1st Respondent as the winner of the election.
At the trial of the petition the statements on oath of the Appellant’s witnesses were adopted by them but on the objection by the Respondent on ground of non-compliance with the provisions of Section 13 of the oath’s Act, the statements on oath were rejected by the Lower Tribunal and marked accordingly. Thereafter, the Lower Tribunal dismissed the Appellant’s petition for want of evidence and the Appellant successfully challenged that decision in this court which in consequence, ordered that the petition be retried on the merit. This appeal is from the decision of Lower Tribunal after the retrial with which the Appellant was dissatisfied.
Two Notices of Appeal were filed by the Appellant on the 28-11-2011 and 29-11-2011, each containing Seven (7) grounds which are materially the same and from which three (3) issues were distilled in the Appellant’s brief filed on the 02-12-2011. The issues are thus:
“1. Whether the Tribunal has the jurisdiction to delve into matters of pre-election and use some to decide the petition? (Ground 1, 3, 5, & 6 of the Grounds of Appeal).
2. Whether the Tribunal was right in rejecting the evidence of the appellant and his witnesses on the ground that the written statement on oath did not comply with Section 13 of the Oaths Act? (Ground 2)
3. Whether if the answer to issue 2 is in the negative, the pleadings and evidence not being challenged or controverted, the Appellant was not entitled to judgment from the Tribunal, failing which the Court of Appeal by virtue of Section 15 of the Court of Appeal Act, is empowered to so do (Ground 7, 4). ”
Being also dissatisfied with a part of the decision by the Lower tribunal, the 1st Respondent filed a notice of cross appeal on the 28-1 1-201 I containing a lone ground.
The 1st Respondent’s brief was filed on the 06-12-2011 in which three (3) issues were set out on page 3 thereof as issues for determination in the appeal and cross appeal.
The 2nd and 3rd Respondents also filed their brief of argument on the 07-12-2011 in which they put out the three (3) issues formulated in the Appellant’s brief of argument as the issues for determination. The brief of argument has no paging or pagination.
In reaction to the Respondents’ briefs of argument, the Appellant filed the Appellant’s Reply brief to 1st Cross Respondent brief on the 09-12-2011 and the Appellant’s Reply brief to the 2nd and 3rd Respondents’ brief on the same date.
At the oral hearing of the appeal on the 05-01-2012, the aforenamed briefs of argument were adopted by the learned Counsel for the parties as their respective submissions in support of their positions in the appeal. The learned SAN for the Appellant Mr. Joe Agi had applied to withdraw the Notice of Appeal filed on the 28-11-2011 and in the absence of any objection from any of the learned counsel for the Respondents; the said Notice of Appeal is hereby struck out for being withdrawn. Since all the issues raised by the learned counsel for the Respondents to the appeal are substantially the same with those submitted by the learned Senior Counsel for the Appellant, I intend to decide the appeal on the issues as set out in the Appellant’s brief and then deal with the 1st Respondent’s issue on the Cross appeal.
I had on the 07-01-2012 summarily given my decision dismissing this appeal for lacking in merit and reserved the reasons for so doing for a later date which is today. I intend to review briefly, the submissions of counsel for the parties on the issues submitted for determination in the appeal and then state the reasons why the appeal is wanting in merit.
The Issue I raised and canvassed by the learned SAN for the Appellant is whether the Lower tribunal has jurisdiction to delve in to matters of pre-election and use same to decide the petition. The submissions on the issue are to the effect that the Lower tribunal had no jurisdiction to determine the issue of boundary adjustment, which was decided by the Federal High court, the court that had the requisite jurisdiction to do so. Reference was made to pages 212-213 of the record of appeal containing portions of judgment appealed against and the case of OBASANJO V. YUSUF (2004) 9 NWLR (877) 144 AT 183 AND 213. It was further argued that the issue of boundary adjustment was not before the Lower tribunal which on the authority of DADA v. BANKOLE (2008) 5 NWLR (1079) 26 AT 47-48 was confined to the issues raised by the parties before it. That the decision on boundary adjustment was perverse and we were urged to so hold. In addition that the decision of the Federal High court on boundary adjustment was binding until set aside by a competent court, relying on the Supreme Court case of AGBOGUNLERI v. DEPO (2008) 3 NWLR (1074) 217 AT 233-234. We were finally urged on the issue to hold that the Lower tribunal proceeded on a path that was uncalled for.
The above issue was argued as the Issue I in the 1st Respondent’s brief and the arguments are that the Lower tribunal did not determine the adjustment of boundaries in its judgment but rather was concerned with the Appellant’s contention that the votes cast in Ikang North, South and Central Wards were votes cast in Bakassi State Constituency and that it had the jurisdiction to determine if that was correct.
Learned counsel had conceded that the constitutionality of the Cross River State Law No.7 of 2007 was not an issue raised before the Lower tribunal and that the law had adjusted the boundary of Bakassi and Akpabuyo Local Government Areas.
For the 2nd and 3rd Respondents, the submissions are that the Appellant’s petition and the documents tendered at the Lower tribunal centred on non-compliance by the 2nd and 3rd Respondents with the Cross River State Law, No.7. Also that the cases cited above by the Appellant were quoted out of con. Arguments on the constitutionality of the Cross River State Law No.7 were made on the issue.
In the Appellants Reply to the 1st Respondent’s brief, it was submitted on the issue that Exhibits “D-D2”, voters cards and the judgment of the Federal High court had shown that the Ikang Wards in dispute are under Bakassi and so votes cast in them cannot be counted for or shared with Akpabuyo Local Government. It was also maintained that the Lower tribunal had no power to investigate if Cross River State Law No. 7 complied with constitutional provisions in the face of the Federal High Court judgment.
Similar submissions were made in the Appellant Reply to the 2nd and 3rd Respondents’ brief on the issue.
Speaking generally, Election Tribunals, created specially to hear and determine disputes arising from elections conducted in the country for various elective offices by the Constitution of Nigeria, were vested with specific jurisdiction to deal with such disputes. The Lower tribunal was established by provisions of Section 285(f) of the 1999 Constitution (as altered) and vested with exclusive original jurisdiction to hear and determine election petitions as to whether:
“(a) any person has been validly elected as a member of the National Assembly; or
(b) any person has been validly elected as a member of the House of Assembly of a State.
Like other Courts of law and tribunals created by the constitution and other statutes, the Lower tribunal’s jurisdiction is limited to that specifically conferred on it by the enabling provisions of the constitution or statutes. The learned SAN for the Appellant is therefore right when he said in his brief of argument that no court, and I add or tribunal, has the power to go outside the law creating it and vesting it with jurisdiction which is circumscribed and confined by the statute. This is a restatement of an established principle of law in Nigerian judicial practice that is very well known such that it requires no reference to a particular judicial decision in which it was laid down or restated. Consequently, a Court or tribunal created by statutes has no power and authority to confer on itself additional jurisdiction not vested in it by the enabling statute or expand the specific jurisdiction vested in it by such statutes. See AFRICAN NEWSPAPERS OF NIG. V. FRN (1935) 2 NWLR (6) 137 NWLR (6) 137; I.T.P.P. v. UINION BANK (2006) 13 NWLR (995) 483 AT 502; BARSOUM V. CLENESSY INT. (1999) 12 NWLR (632) 516 AT 530; LAWAL V. OLADOKUN (2003) 2 NWLR (804) 271 AT 288-289.
In the above premises, the Lower tribunal had no power and authority in form of jurisdiction to entertain or purport to hear or determine any issue which is outside the questions as to whether any person has been validly elected as a member either of the National Assembly or of the House of Assembly of a State, as prescribed in the provisions of Section 285(1) of the Constitution (as altered).
In particular, a pre-election matter or dispute which encompasses the stages of conducting primaries by political parties for the sponsorship of candidates for an election, is clearly an issue or dispute that is outside the jurisdiction vested in the Lower tribunal under the provisions of 285(1) which deals with post election disputes that may arise after the holding or conduct of an election. The law is now beyond argument that election tribunals like the Lower tribunal, do not have the jurisdiction to entertain, hear and decide matters or disputes which arise from pre-election activities of political parties. The jurisdiction to hear and determine issues arising from pre-election disputes reside elsewhere; in the regular Courts. See JANG V. DARIYE (2006) 2 EPR 839; DOUKPOLAGHIA V. GBORGE (1992) 4 NWLR (236) 444; AGBAKOBA V. INEC (2008) 18 NWLR (1119) 489; ODEDO V. INEC (2008) 17 NWLR (1117) 554; PDP V. ONWE (II) 1 MJSC (II) 191 AT 197-198. In the present appeal, the case put forward by the Appellant is that the Lower tribunal had no jurisdiction to delve into matters of pre-election and use same to decide the Appellant’s petition. The question that agitates itself here is what matter of pre-election if any, did the Lower tribunal delve into in the judgment appealed against. The learned SAN for the Appellant in his arguments of the issue had set out portions of the Lower tribunal’s judgment in his brief, as the basis for the issue. It is expedient to set them out here.
They are:
“From the provisions above, it could be seen that the powers to delineate, review and adjust the boundary of a State House of Assembly Constituency is entirely of INEC and National Assembly. Therefore the claim by the petitioner that votes in those three wards were meant for Bakassi State Constituency is spurious and has no basis.
We wish to point out that the Cross River State Law No.7 of 2007 was an adjustment of the existing Local Government boundaries which the State House of Assembly has the competence to undertake by virtue of Section 8(4) of the 1999 Constitution of Nigeria (as amended). However, this is subject to Section 8(5) of the same constitution to make the necessary constitutional compliance. But there is no evidence before us that this has been done.”
By the portions of the judgment appealed against, the Appellant’s quarrel is with the Lower tribunal’s mention of the fact that from the evidence placed before it, including the Cross River State Law No.7 of 2007 which was tendered by the Appellant, there was no evidence to show that the boundary of the Bakassi State constituency for which the Appellant claimed votes, was adjusted to include the wards of Ikang North, South and Central.
The Appellant had in paragraph 5 of his petition pleaded as follows:
“Your Petitioner states that the 2nd and 3rd Respondents wrongfully ascribed all his votes cast in Bakassi State Constituency to the Action Congress of Nigeria candidate in Akpabuyo State Constituency. The scores and result of Akpabuyo State Constituency is hereby pleaded recorded as Ikang Central, Ikang North and Ikang South Wards.
Apparently, the Appellant tendered the Cross River State Law No.7 to support the above claim that the votes cast in Ikang North, South and central wards were for Bakassi instead of Akpabuyo State Constituency as declared by the 2nd and 3rd Respondents.
In ground (o) upon which the petition was based, the Appellant asserted that:
(o) Your Petitioner states that the votes allocated to the 1st Respondent are not valid votes as the true and legal and valid votes were cast in what was Ikang North, central and south and now subdivided into 10 wards with names of villages as shown on the law.”
The above claim was the foundation of the Appellant’s petition for which he prayed the Lower tribunal for the following reliefs:
“(a) That it is be determined that the 1st Respondent Honourable Saviour O. Nyong was not duly elected or returned by a majority of lawful valid votes.
(b) That your Petitioner scored the highest number of valid/lawful votes cast in the Bakassi state
constituency election held on 26th April, 2011, and should be returned as the duty elected candidate.”
It was in the con and determination of the above questions submitted by the Appellant to the Lower tribunal and the evaluation of the evidence presented by him; i.e Cross River State Law No-7 that it eventually came to the following conclusion at 212 of the record of appeal that:
” There is no evidence before us that INEC and the National Assembly had reviewed or altered the boundary of Bakassi State Constituency to include Ikang North, South, and Central. Exhibit “B” tendered before us is that of Bakassi and Akpabuyo Local Government and not Bakassi and Akpabuyo State Constituencies.
It is therefore our respectful view that there is no evidence before us that the votes allegedly cast in favour of the Petitioner and the 1st Respondent in Ikang North, South and Central were votes meant for Bakassi State Constituency and not Akpabuyo State Constituency. It has to be realized that the State House of Assembly can alter the boundaries of a local government subject to constitutional compliance while it is the duty of INEC and the National Assembly to delineate the boundaries of a state constituency. There is a difference between the two functions.”
So which pre-election issue was used by the Lower tribunal to determine the Appellant’s petition as claimed in this issue? Was the consideration and the evaluation of the evidence placed before it by the Appellant in the determination of the questions also submitted by the Appellant to the Lower tribunal, the use or determination of a pre-election matter by it? In the determination of whether the Lower Tribunal had delved into a pre-election matter or not in its judgment, it is unfair to isolate a particular sentence or portion of the judgment and cling to it as the basis for coming to a conclusion on the issue. Rather, the claim of the Appellant, the evidence placed before the Lower tribunal and the judgment it arrived at the end of trial should wholistically be considered in order to find out what were the reasons for the decisions of the tribunal.
The cross River state Law No.7 in my view is not a pre-election matter as far as the election of the 2011 were concerned since it was not made in respect of or for the purpose of those elections. For the purpose of the Appellant’s petition before the Lower tribunal, it was a piece of evidence relied on by the Appellant to prove his claim that votes’ cast in his constituency were wrongly declared for another constituency by the 2nd and 3rd Respondents’ The Lower tribunal had the primary duty to and was entitled to assess that piece of evidence along other pieces of evidence placed before it to determine the claim.
The judgment of the Federal High court on the cross River State Law No.7 which the Appellant had also relied on in proof of his claim was delivered on the 08-11-2011 after the election in dispute was conducted. Consequently, for the purpose of the Appellant’s petition, it was not a pre-election matter but rather one that happened or came into existence after the election in dispute. Of course, the law is trite that a decision or judgment of a competent court remains valid and effective until set aside by another court of competent jurisdiction and all persons and authorities have the duty to enforce it.In any case, since the judgment was not used by the Lower tribunal, it is of no moment in the determination of whether that tribunal delved into a pre-election matter to decide the Appellant’s petition.
In the result, my finding on the issue is that the Lower tribunal did not delve into any pre-election matter and use same to decide the Appellant’s petition.
The Appellant’s issue No.2 is whether the Lower tribunal was right in rejecting the evidence of Appellant and his witnesses on the ground that the statements on oath did not comply with Section 13 of the Oath Act. It was submitted on the issue that the statements on oath of the Appellant and his two(2) witnesses were deposed to before the Secretary of the Lower tribunal as commissioner for Oaths and each ended thus “That I deposed to this statement bonafide and in accordance with Oaths Act, 2004” Further, that the statements were adopted in the witness box by the witnesses who were sworn to speak the truth, but the lower tribunal said they should be tendered as Exhibits by the Appellant’s counsel. That when tendered, the 1st Respondent objected to them on the ground that they did not comply with section 13 of the Oaths Act and the Lower tribunal relying on the case of OBUMEKE V. SYLVESTER (2010) ALL FWLR (506) 1945, upheld the objection. It was contended that the statements in that case did not contain oath or affirmation at all and the witnesses did not enter the witness box to adopt them in like the Appellant’s case. Relying on the authorities of CHUKWUMA V. NWOYE (II) ALL FWLR (553) 1942 AT 1970; ANATOGU V. IWEKA II (1995) 8 NWLR (415) 547 AT 572-573; UDEAGHA V. OMEGARA (2010) 11 NWLR (1204) 168 AT 195 and 196 and MKPA V. MKPA (2010) 14 NWLR (1214) 612 AT 648, it was submitted that the rejection of the statements on oath after they were adopted by the witnesses as their evidence was perverse. We were then urged to hold that the Respondents who did not file a reply had no question for the witnesses and their evidence should be taken as unchallenged and uncontroverted. It was said that the statements did not only comply with the Oaths Act but that the witnesses took another oath in the witness box before adopting them as their evidence and that by virtue of paragraph 53(2) of the 1st Schedule to the Electoral Act, it was not appropriate for the Respondents to challenge them as it was too late for them to do so. We were urged to hold that the witness statements on oath are proper before the Court and need not be admitted separately after being adopted by the witnesses.
For the 1st Respondent, it was submitted that the Lower tribunal was right in relying on the decision in OBUMEKE V. SYLVESTER (supra) to reject the witness statements on oath and that it was the learned counsel for the Appellant that initiated the procedure of tendering the statements in evidence. Alternatively, it was argued that even if the statements were admissible, they would not have proved that the Bakassi State Constituency had been adjusted to include the Ikang Wards in dispute as it is a matter of pure law. Furthermore, that the statements would not have changed the fact that the Lower tribunal does not have jurisdiction to determine the adjustment of boundaries.
The 2nd and 3rd Respondents arguments on the issue are that the Lower tribunal was bound by the decision in OBUMBKE v. SYLVESTER (supra) and that the cases of CHUKWUMA V. NWOYE; ANATOGU V. IWEKA II and UDEGHA V. OMEGARA (all supra) relied on by the Appellant do not apply in the appeal. Reference was made to paragraph 53(5) of “The Rules of the Election Tribunal and it was submitted that the appropriate time for the Respondents to raise the objection to the statements was at hearing of the petition.
The Appellant’s Reply to the 1st Respondent’s brief did not deal with the submissions on the issue as reviewed above but on other submissions on the 1st Respondent’s Issue 2.
The Reply to the 2nd and 3rd Respondents, brief by the Appellant did not also contain any submissions by way of response or answer to the submissions by them on the issue.
Now by the provisions of paragraph 4(5) of the 1st schedule to the Electoral Act, 2010 (as amended) enacted to regulate the procedure and practice in the presentation of election petitions before Election Tribunals has provided that:
“4(5) The election petition shall be accompanied by:-
(“) A list of the witnesses that the petitioner intends to call in proof of the petition;
(b) Written statements on oath of the witnesses.”
The list of witnesses and the statements on oath of the witnesses as well as the copies of the documents required and item (c) of the sub-paragraph are what have together been named and known popularly as the “front loading system” introduced in the Electoral Act.
The above provisions are in line with the known principles of law that time is at the very essence of election matters whish derived from the limitation of the period prescribed within which such matters have to be heard and determined by the tribunals as contained in the 1999 Constitution, as altered. The provisions are aimed at avoiding the usual delays in witnesses giving oral testimony at the trial of petitions, cross examination and reexamination that may arise therefrom. In the furtherance of that objective, the 1st Schedule to the Act did not stop at the above provisions but in paragraph 41(3) provided thus:
“(3) There shall be no oral examination of a witness during his evidence in-chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the deposition.”
As can easily be discerned from the above clear and straight forward provisions, at the hearing of a petition, there shall be no oral examination of a witness in examination in chief except to be led to adopt his written deposition or statement on oath filed along with the petition as required by the provisions of paragraph 4(5)(a) and (b) set out above, and to tender all disputed documents or other exhibits referred to in the statement.
It should be pointed out the provisions do not require or even say that the statement on oath by a witness which he adopts in his examination in chief should be tendered either by him or the counsel leading him to adopt it as his evidence at the trial. All that the provisions require to be tendered by a witness after or in addition to adopting his written deposition are disputed documents or other exhibits referred to in his deposition. As a result, it would be an error and therefore a wrong procedure to require a witness or a counsel leading him in examination in chief to tender the written statement or deposition of the witness after adopting it as his evidence and it is not required by the rules regulating the procedure for the hearing or trial of election petitions as contained in the 1st Schedule to the Electoral Act.The question I ask here is; what is the effect of the adoption of a written deposition or statement by a witness in examination in Chief in the trial of an election petition? Since there shall be no oral examination of the witness in examination in Chief and the witness is not required to tender the written deposition or statement adopted by him in the examination in Chief, the adopted written deposition or statement takes the place, nature and effect of oral testimony of the witness before the tribunal on which, he could be cross examined by the Respondents. So once the written deposition or statement by a witness is adopted by him in the witness box in the course of examination in chief, it becomes his oral evidence at the trial and that is why the provisions of the 1st Schedule to the Electoral Act do not require, that it be tendered either by the witness or Counsel leading him the examination in chief. Can the admissibility of an oral evidence or testimony be challenged in an election petition on the ground of non-compliance with the provisions of Section 13 of the Oath Act after it was given in Court? Section 13 of the Oaths Act, Cap 333, Law of Federal Republic of Nigeria, 1990 has the following provisions:
“13. It shall be lawful for any Commissioner for Oaths, Notary Public or any other person authorized by the Act to administer oaths, take and receive the declaration of any person voluntarily making the same before him in the form set out in the 1st Schedule which is as follows: “I (name supplied) do solemnly and sincerely declare, that I make this solemn declaration conscientiously believing same (or the contents) to be true.”
Let it be noted that in practice, a witness who enters the witness box at the trial of an election petition is either sworn or affirmed before being led in examination in chief to adopt his written deposition or statement filed along with the petition earlier. In other words, the witness would swear to an oath or make a solemn declaration that he would in the course of his testimony before the tribunal, state or speak the truth, the whole truth and nothing but the truth, seeking help from God in either of the two (2).
The Oaths Act only permits a Commissioner for Oath to administer an oath or take declaration from a person volunteering to make same before him in the form provided in the Schedule to the Act. The oath or affirmation (or declaration) by a witness in the witness box before being examined in chief and led to adopt his written statement or deposition is made before the tribunal/Court that has the opportunity to physic ally see and hear the witness speak and is entitled in law to take into account his demeanour and other nuances in the assessment of the evidence he gives. The taking of the oath or making the affirmation by the witness is as a matter of course and accepted’ practice, required by the tribunal/court and not left to the voluntary choice or discretion of the witness. In the circumstances, the oath or declaration made before the tribunal in the witness box practically covers all that the witness would physically say in the trial and what is contained in the written statement or deposition which he adopts in examination in chief.In my very firm view, once the written statements or depositions are adopted by a witness after swearing or making an affirmation before a tribunal, their admissibility in evidence cannot properly be challenged on the ground of non-compliance with the provisions of Section 13 of the oath Act. In the case of IBRAHIM V. INEC (2007) 3 EPR 50 AT 66, this court per Salami, JCA (now PCA) while dealing with the oath provided for under section 13 of the Oath Act, had held that:
“Clearly, section 13 is providing for various oaths or declaration that may be subscribed to by various persons depending on the nature of their duty. The provisions that must be contained in an affidavit. Rather it provides for classes of oath that may be lawfully administered by any Commissioner of oaths, notary public or any others person authorized by the Act to administer Oaths. It is not the intention of the legislature that wording of the declaration shall be incorporated into an affidavit to render it valid.”
(Underlined supplied for emphasis).
It should be noted that for the purposes of Section 13 of the Oaths Act, there is no practical difference between the oath or declaration to be made in an affidavit and a witness deposition or statement on oath required to be filed along with a petition by the Electoral Act. Both are sworn to before a Commissioner for oaths or a person duly authorized under the provisions of the Oaths Act to administer oaths or take declarations.
Perhaps I should also point out the admissibility of any piece of evidence is a matter of law. I am unable to find any provisions in the Oaths Act which provides that an oath or declaration that does not strictly conform with or in the form set out in the Schedule to the Act is not admissible as evidence in judicial proceedings. Similarly, the Evidence Act which regulates the admissibility of evidence in all judicial proceedings in our Courts and tribunals contain no provisions that the admissibility of oral testimony or evidence of a witness can be challenged on the ground that it did not comply with the form set out in the oaths Act. The case of OBUMBKE v. SYLVESTER (supra) did not decide that the admissibility of a statement on oath of a witness can be challenged after the witness had adopted it as his evidence before an election tribunal. Put another way, the case did not decide that an objection can be raised to the admissibility of a witness statement on oath after the witness had adopted it as his evidence before a tribunal’ The point or issue decided by my learned brother Alagoa, JCA in that case was in respect of an objection raised by the Respondents to a petition on the witnesses statements attached to the petition on the ground that they did not comply with Section 13 of the Oaths Act. As a result of the objection by the Respondents, the petitioner filed an application seeking leave of the tribunal to amend the said statements on oath to meet the requirements of the Oaths Act. After taking arguments on both the objection and the application to amend the statements on oath, the tribunal upheld the objection, struck out the statements on oath and the petition. What should be noted in the case is that the objection by the Respondents was raised before the statements in question were adopted by the witnesses who deposed to them at the hearing or trial of the petition.
The petitioner in that case was dissatisfied with the decision of the tribunal striking out the statements and the petition and so appealed to this Court. This Court dismissed the appeal and affirmed the decision of the tribunal for reasons which included the one set out by my learned Brother Allagoa, JCA in the statement relied on by the Lower tribunal in rejecting the Appellant’s (herein) witness statements on oath. The case is therefore no authority for the raising of an objection to the admissibility of a statement on oath of a witness which had been adopted as evidence before the Lower tribunal on the ground that it did not comply with the provisions of Section 13 of the Oaths Act. Let me restate the principle of law here that a decision of a Court is only authority for what it actually decided since every Court is only entitled to decide the issue(s) raised in the case before it. Therefore a previous decision is not to be followed by a Court or tribunal where the facts or the law applicable or applied in that decision are disguishable from those of the latter case. See ADISA v. OYINWOLA (2000) 10 NWLR (892) 92 AT 129. Let it be noted that a situation where every expression of a view or opinion by a higher court on points or issues that did not arise for decision in a case before it, will attract to itself the binding force of precedent is not within the contemplation or purview of the doctrine of stare decisis as established and restated by the apex court in the country.For the aforementioned reasons, both the procedure that required the tendering of the written statements on oath after they had been adopted by the witnesses who deposed to them in the witness box as well as the objection to their admissibility thereafter, were improper, strange and wrong. The rejection of the statements on the ground of the objection was unsupportable and an error in law on the part of the Lower tribunal. Consequently, I resolve the issue in favour of the Appellant.
The next issue raised by the Appellant is on the legal consequence of the wrongful rejection of the Appellant’s witnesses statements on oath. The Issue 3 of the Appellant is whether if the answer to his Issue 2 was in the negative, which I have found it is, the Appellant was not entitled to judgment since his pleadings and evidence were not challenged or controverted.
The learned SAN had submitted on the issue that the Appellant had tendered all the relevant documents with the consent of the Respondents who did not file Replies to the petition and so no issues were joined by them. Relying on the cases of SALZGITTER STAHL GMBH V. JUNJI DOSUNMU IND. LTD. (2010) 11 NWLR (1206) 589 AT 612 AND KOTUN V. ASEWERE (2010) 1 NWLR (1178) 411 AT 439 among others, he contended that the Appellant was entitled to judgment. According to him, the case of INBC V. A.C (2009) ALL FWLR (480) 732 was wrongly applied by the Lower tribunal and that by the front loading system under the Electoral Act, it cannot be said that the Appellant had no evidence is support of his pleadings. Furthermore, placing reliance on AIKI V. IDOWU (2006) 9 NWLR (984) 47 AT 65, the learned SAN said the Lower tribunal was not right in holding that the documents tendered were dumped on it since Exhibits “G-G2” indicate votes wrongfully ascribed to Akpabuyo in the name of the Ikang Wards in dispute and Exhibits “F-G9”, which show the second set of results used to return the 1st Respondent representing Bakassi which the Appellant had stated is now in Cameroon. We were urged to hold that the rejection of the evidence of the Appellant and his witnesses occasioned a great miscarriage of justice and to turn the judgment of the Lower tribunal. Section 227(2) of the Evidence Act and OLADIPO v. MSBA L.G.A. (2010) 5 NWLR (1186) 117 AT 165 were cited.
Lastly, we were invited to invoke the provisions of Section 15 of the court of Appeal Act, since the pleadings and evidence said to remain unchallenged and uncontroverted, are before us, to allow the appeal and declare the Appellant as the duly elected candidate for Bakassi State Constituency.
For the 1st Respondent, it was submitted that it is not in all cases that a party would be entitled to judgment once there is no defence and that declaratory reliefs such as the one sought by the Appellant in his petition, cannot be granted on mere admission of pleadings. The case of OLAWEPO v. SARAKI (2009) ALL FWLR (498) 256 AT 310-311 was cited as authority for the submissions. In addition, it was submitted that the law is that a petitioner must succeed on the strength of his case and not on the weakness or absence of the Respondent’s defence, relying on inter alia, the case of NA’UMBA V. NAHUCB (2010) ALL FWLR (506) 1963 AT 1972. It was further contended that though none of the Respondents filed a Reply to the petition’ that did not exempt the Appellant from leading evidence to support his pleadings since pleadings not supported by evidence, are deemed abandoned. Reference was made to paragraph 36 of the 1st Schedule to the Electoral Act under which the Lower tribunal chose to try the petition inspite of the absence of the Respondents’ Replies. The case of AGAGU v. MIMIKO (2009) ALL FWLR (462) 1122 AT 1154 was cited and we were urged to dismissed the appeal.
The argument of the 2nd and 3rd Respondents on the issue are to the effect that the Appellant’s declaratory reliefs cannot be granted without evidence and the results the Appellant tendered for the Ikang Wards of Akpabuyo L.G.A. were not for Bakassi State Constituency but part of Akpabuyo State Constituency. Further, that the Appellant did not tender any results of the election for Bakassi L.G.A. and that he could not use the results of another constituency for Bakassi constituency to prove his petition.
It was the case of the 2nd and 3rd Respondents that the Appellant did not discharge the burden of proof and since there was a presumption of regularity in favour of the election for Bakassi State Constituency, the Lower tribunal was right to have dismissed the Appellant’s petition. Section 168 of the Evidence Act, 2011 and the cases of CHIME v. EZEA (2009) 2 NWLR (1125) 263 AT 354 and KOLAWOLE V. FOLUSHO (2009) 8 NWLR (1143) 338 AT 406 were referred to in support of the submissions. In further arguments, it was said that, on the authority of ANPP V. NA’ALLAH (2009) ALL FWLR (492) 1191, the Appellant had to demonstrate the relevance of his exhibits through evidence and that the exclusion of the Appellant’s evidence is no ground for the reversal of the decision of the Lower tribunal, citing Section 251(2) of the Evidence Act, 2011.
Finally, on the application of Section 15 of the Court of Appeal Act, the cases of ENEKWE V. IMB (NIG.) LTD. (2006) 19 NWLR (1013) 146 AT 176 AND GOMBE V. PW (NIG.) LTD. (1995) 6 NWLR (402) 415-416 were cited and we were urged to dismiss the appeal.
In reaction, the Appellant in the Appellant’s Reply to the 2nd and 3rd Respondents’ brief had said that the condition for the invocation of Section 15 of the Court of Appeal Act, 2004 is as enumerated in the case of OBI v. INEC (2007) 11 NWLR (1046) 560 and that the precondition exists in this appeal.
I would start a consideration of the issue by saying that the learned SAN for the Appellant is right when he said that the law is that where pleadings are admitted by the party against whom they were asserted, they require no proof by evidence. The need, duty to prove or burden of proof presupposes a dispute between parties as to fact(s) contained in the pleadings of a case and so where the facts pleaded in a case are not disputed or denied, the question of proof would not arise since no issue was joined between the parties. In addition to the cases cited on the principle by the learned counsel, see OWOSHO v. DADA (1984) 7 SC 149; AKIBU V. ODUNTAN (1992) 2 NWLR (222) 210 AT 226-227; KYARI V. ALKARI (2001) 11 NWLR (724) 412; ABACHA V. FAWEHINMI (2000) FWLR (4) 533.
Learned Counsel for the 1st Respondent is also right that in election petitions, a petitioner who owes the initial evidential burden of proof under the law, is to succeed on the strength of his case and not on the weakness or absence of a defence. AWUSE V. ODILI (2005) ALL FWLR (261) 218 AT 313; ONIFADE V. OYEDEMI (1999) 5 NWLR (601) 54 AT 56; JANG V. DARIYE (supra) 437. In the case of OGUNBIDE V. A.G. KWARA STATE (1993) 8 NWLR (313) 558 AT 568; the law was stated thus:
“The trial Court is still under a duty to evaluate the evidence by the plaintiff and must be satisfied that the evidence is credible and sufficient to sustain the claim. This is so because the legal burden on the plaintiff or any person, who asserts, is to prove his civil claim on the balance of probabilities, and it is in no way mitigated by the opposing side’s election to blow a muted trumpet. “Now, the case of the Appellant as per his pleadings is simply put that the 1st Respondent was not duly elected and returned by a majority of lawful valid votes and that he scored the highest of such votes cast in Bakassi State Constituency in the election in question.
In effect, the Appellant is challenging the lawfulness of the results declared and returned by the 2nd and 3rd Respondents for Bakassi State Constituency, where he contested the election. He is saying that the results declared by the 2nd and 3rd Respondents for his constituency were not correct or authentic. It is to be remembered that the results declared and returned by the 2nd and 3rd Respondent for the election enjoy a rebuttable presumption of correctness and authenticity in law and the Appellant who alleges otherwise, has the duty to rebut the presumption. The position of the law was stated by Supreme Court in the case of BUHARI v. OBASANJO (2005) ALL FWLR (273) 1 AT 124 that:
“Once the Electoral Commission announces the result of an election, it is presumed correct and authentic and the petitioner who alleges the opposite must offer clear and positive proof that the result is incorrect and not authentic.”
(Underlined supplied for emphasis) ‘
Since the challenge by the Appellant to the results declared by the 2nd and 3rd Respondents was civil in nature the burden of proof in rebutting the presumption in favour of the result would be on the balance of probability or preponderance of evidence. BUHARI v. OBASANJO (supra); ADEDEJI v. KOLAWOLE (2006) 2 EPR 70 AT 86. However, the degree of preponderance or probability of the evidence required may be less where a case is not contested or defended, depending on the peculiarities of the case. See AKANNI v. ODEJUDE (2004) ALL FWLR (218) 827 AT 858; MOGAJI V. ODOFIN (1978) 4 SC 91; OKUPE V. IFEMEMBI (1974) 1 ALL NLR 375.In ground (e) of the petition the Appellant had asserted that the results for the Ikang wards in dispute were ascribed by the 2nd and 3rd Respondents to Akpabuyo instead of Bakassi constituency. However, apart from the ten (10) polling units set out in ground (i) of the petition, no other results from the Bakassi State constituency were pleaded in the petition. It was also not pleaded that the Bakassi constituency was made of only the ten (10) named polling units. It should be noted that the 2nd and 3rd Respondents conducted the election in both the Akpabuyo and Bakassi State Constituencies on the basis of the erection guidelines issued before the election and election results were declared and returned accordingly for the two constituencies. The Appellant was fully aware that by the 2nd Respondent’s guidelines, the Ikang wards in dispute were listed under and for the Akpabuyo State Constituency and went ahead and contested the election as advertised in the guidelines. He now claimed that what advertised as Bakassi Constituency for the election is largely in Cameroon and so by both pleadings and the statements on oath which were rejected by the Lower tribunal, the Appellant’s results of the election declared and returned for Akpabuyo should be used to declare that the scored the highest valid/lawful votes cast in the Bakassi State Constituency. Would that not amount to robbing Paul to pay Peter on the bare allegation that the money does not belong to Paul? Because admittedly, Akpabuyo is separate, distinct and different from the Bakassi State Constituency, the results of the election declared for the constituency which the Appellant now claims, must have been and were for the candidates who contested the election in that constituency. None of such candidates but particularly the person declared and returned as the winner of the election in the constituency based on the results declared and whose return is to be affected by the claim of the Appellant, was made a party in the petition.
My view is that even if Appellant’s and his two (2) witnesses’ statements on oath had been admitted they could not been cogent and sufficient to prove that the Appellant in fact scored the highest lawful votes in the Bakassi State Constituency. The documentary exhibits tendered from the bar and admitted in evidence, particularly Exhibits G, G1, G2 and H which are the results declared for the Ikang wards in dispute; Forms EC8B(i) firmly stand between the Appellant and the required standard of proof that the results were for Bakassi State Constituency. Exhibits F-F9 which are also INEC Form EC8B(i) like Exhibits G, G1 and G2 for Akpabuyo State constituency, show the results of the election conducted in Bakassi State Constituency by the 2nd and 3rd Respondents which were declared and used to return the winner of the election there.
In the result, my answer to the Issue 3 is that even though the Issue 2 was resolved in favour of the Appellant, he was not entitled to judgment from the Lower tribunal and now, is not so entitled in this court’ The issue is accordingly resolved against the Appellant.
In the final result, it is for the aforementioned reasons that I found no merit in the appeal and dismissed it on the 07-01-2012. Parties shall bear their respective costs in prosecuting the appeal.
For the Cross appeal, I have in the course of dealing with the Issue 3 in the main appeal stated that the Appellant was required to prove that he scored the highest lawful votes in the Bakassi State Constituency on the preponderance of evidence or balance of probability. The Appellant’s pleading in paragraph 5(g) of the petition that the 2nd and 3rd Respondents purported to have conducted election into the Bakassi State Constituency was an allegation of a civil nature in that it means that the election factually conducted by the 2nd and 3rd Respondents in the Bakassi State Constituency was said not to be in accordance with the law and so purported. There is no element of crime whatsoever in the pleading that would require proof beyond reasonable doubt. For that reason, the Cross appeal, though overtaken by the dismissal of the main appeal, is apparently wanting in merit. It is dismissed accordingly and I make no order on costs in respect thereof.
UZO I. NDUKWE.ANYANWU, J.C.A: I had the privilege of reading in draft form, the judgment just delivered by my learned brother, M. L. Garba JCA. I agree with the reasoning and final conclusions that this appeal lacks merit. It is therefore dismissed for the fuller reasons given in the lead judgment. I also abide by all the consequential orders contained therein.
I also dismiss the cross appeal.
JOSEPH TINE TUR, J.C.A.: I was a member of the panel that summarily dismissed this appeal on 07-01-2012 promising to give fuller reasons at a later date. Having read the fuller reasons by my Lord Mohammed Lawal Garba, JCA, I concur that on the whole this appeal lacks merit and should be dismissed. I shall add a few comments of mine for purposes of emphasis.
Paragraph 4(5) of the 1st Schedule to the Electoral Act, 2010 as amended reads as follows:
“(5) The election petition shall be accompanied by:-
(a) A list of witnesses that the petitioner intends to call in proof of the petition.
(b) Written statements on oath of the witnesses; and
(c) Copies or list of every document to be relied on at the hearing of the petition.
(6) A petition which fairs to comply with subparagraph (5) of this paragraph shall not be accepted for filing by the Secretary.”
The “front loading” system is to ensure speedy trial and enable the Respondent to know in advance the names or list of witnesses and their numbers as well as the type of documents that the petitioner intends to rely at the hearing of the petition in proof of his grievances. These shall accompany the petition when filed.
Paragraph 41(1)-(4) of the 1st Schedule supra provides what happens at the hearing:
“41(1) Subject to statutory provision or any provision of these paragraphs relating to evidence, any fact required to be proved at the hearing of a petition shall be proved by written deposition and oral examination of witnesses in open Court.
(2) Documents which parties consented to at the pre-hearing session or other exhibits shall be tendered from the Bar or by the party where he is not represented by a legal practitioner.
(3) There shall be no oral examination of a witness during his evidence in-chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the deposition.
(4) Real evidence shall be tendered at the hearing.”
The role of the Legal Practitioner at the hearing of the petition is to lead the witness to adopt his ‘sworn deposition and to tender from the Bar documents which the parties consented to at the pre-hearing session. Other exhibits that the parties in the course of trial consented to may also be tendered from the Bar to save time and cost of litigation. See Igbodin & ors vs Obianke & ors (1976) 1 NMLR 212 where Obaseki Ag. JSC (as he then was) held at page 219 that:
“It is settled law that documentary evidence can be admitted in Court proceedings through any witness by consent or without objection and Section 90(2) of the Evidence Act which governs proceedings in Bendel State High Court gave the learned trial judge power to admit the said documents, notwithstanding that their makers were available and not called as witnesses.
The parties or Counsel can consent that documents be put in as evidence without the necessity of calling witnesses. The effect of admitting documents by consent was stated in the Supreme Court case of Mandilas & Karaberis Ltd. vs. Otokiti (1963) 1 All NLR 22 at 28; that this:
“..Made it evidence for both sides and saved either sides from being penalized at the other’s request, because of the omission to plead the written agreement.”
However, where the parties or their respective Counsel have not consented, such documents or disputed documents are to be tendered through witnesses for the purposes of cross-examination by the opposing party.
A deposition may be defined as a witness’ out of Court testimony that is reduced to writing (usually by a Court reporter) for later use in Court or for discovery. See Blacks Law Dictionary, 8th edition, page 472. A Counsel or any other person may reduce a person’s testimony in writing as his or her deposition. But to be rendered admissible at the hearing it has to be sworn as envisaged by paragraph 4(5) (b) of the 1st Schedule to the Electoral Act, 2010 as amended.
Once the deposition is adopted at the hearing that constitutes the evidence of the witness. That is why, subject to any statutory provisions or any paragraphs relating to evidence, any fact to be proved at the hearing of the petition shall be proved by written depositions and oral examination of witnesses in open Court. Sworn depositions are not to be tendered and marked as exhibits before they can be held to have proved facts in issue.
The depositions of witnesses on oath may be likened to pleadings. In Phipson On Evidence, 14th edition, paragraph 34-12 page 929 the learned authors have written that:
“Pleadings are admissible in subsequent proceedings, to prove their own existence, the institution of the suit and the facts in issue between the parties. But being regarded in other respects rather as suggestions of Counsel than the declarations of the parties, they are not receivable to prove the truth of the facts stated, even as admissions, unless verified by oath, or signed; or otherwise specifically adopted those against whom they are tendered.”
At page 28 paragraph 2-01 of Phipson On Evidence supra the learned authors have further stated that:
“No evidence is required of mattes which are either (a) formally admitted for the purposes of the trial or (b) judicially noticed.”
Admitted facts in sworn depositions which have been adopted by the witness needs no further proof and judgment can be had on the pleadings or sworn deposition. See Somisi vs. Sowemimo (1980) 2 FCA 153 at 160; Mills vs Renner (1940) 6 WACA 144 at 145; Egbe vs Alhaji (1990) 3 SCNJ 41. The tribunal erred to have excluded the depositions of the witnesses.
It is however, not every error or mistake that may necessitate an interference with the judgment of the tribunal or Court of justice. See Onifade vs Olayiwola (1990) 11 SCNJ 10 at 22 and Onojobi v. Olanipekun (1985) 4 SC (Pt.2) 156 at 163.
For the fuller reasons given in the lead judgment I also dismiss this appeal and abide by the orders made therein.
Appearances
Joe Agi, SAN, with Nta A. Nta, A. Onung, Mohammed Shuaibu, M. S. Chi and U. Omaji (Mrs.)For Appellant
AND
Essien H. Andrew with E. Eke Edem – For the 1st Respondent
2nd and 3rd Respondents – Not represented on 16/12/2011.For Respondent
