HON. MKPANAM OBO-BASSEY EKPO & ANOR. V. NGIM OKPO KANU & ORS.
(2011)LCN/4923(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of September, 2011
CA/C/NAEA/204/2011
RATIO
PRELIMINARY OBJECTION: WHETHER A PRELIMINARY OBJECTION CAN ONLY BE TAKEN AGAINST THE HEARING OF AN APPEAL AND NOT AGAINST ONE OR MORE GROUNDS OF APPEAL
It is abundantly clear that the objections by the Respondents are not against the hearing of the appeal as envisaged by Order 10 Rule 1 of the Court of Appeal Rules, 2011, but against some of the grounds of appeal filed by the appellants. Salami, JCA in NEPA vs. Ango (2011) 15 NWLR (Pt.737) 627 at 645 stated that: “Furthermore, a preliminary objection can only be taken against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. A preliminary objection should be capable, if successfully taken, of putting an end to the hearing of the appeal. An objection to qualify as preliminary objection should require serious argument and consideration on a point of law which if decided, one way or the other is going to be decisive of litigation.” PER ISAIAH OLUFEMI AKEJU, J.C.A
PRE-TRIAL STAGE: WHETHER A COURT CAN STRIKE OUT THE WITNESSES WRITTEN STATEMENT ON OATH AT THE PRE-TRIAL STAGE
One issue that is common to all the Briefs and therefore raised by all the parties is the striking out of the Written Statements on oath of the petitioners’ witnesses at the pre-hearing stage and the consequent striking out of the petition. This same issue came up before this Court in Appeal No. CA/C/164/2011 – William Ballantyne vs. Hon. Essien Ekpenyong Ayi & Ors. and in the unreported judgment delivered on 17th August, 2011, this court held the view that the Tribunal was not right to have struck out the petitioner’s written statements on oath at the pre-trial stage. Since this court does not possess the power to overrule itself or depart from its previous decision which has not been set aside, we abide by the decision in that case and apply the decision therein to the instant case. PER ISAIAH OLUFEMI AKEJU, J.C.A
JURISDICTION: WHAT WILL BE CONSIDERED IN DETERMINING WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN A CAUSE OR MATTER
it is settled that it is the claim of the plaintiff (this time the petitioner) that should be looked into to determine whether court has jurisdiction. See Adeyemi vs. Opeyori (1979) 9 -10 SC 31; F.B.N. vs. Abraham (2003) 18 NWLR (Pt.1118) 172. PER ISAIAH OLUFEMI AKEJU, J.C.A
JURISDICTION OF THE ELECTION TRIBUNAL: WHETHER THE ELECTORAL TRIBUNAL HAS JURISDICTION TO DETERMINE WHETHER A PERSON HAS BEEN VALIDLY ELECTED AS A MEMBER OF THE NATIONAL ASSEMBLY AND AS A MEMBER OF THE HOUSE OF ASSEMBLY OF A STATE
…the jurisdiction of the Election Tribunal is granted in Section 285(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as well as the Electoral Act, 2010. By Section 285(1) of the constitution, the Tribunal is to determine whether: “(a) any person has been validly elected as a member of the National Assembly, and; (b) any person has been validly elected as a member of the House of Assembly of a State.” PER ISAIAH OLUFEMI AKEJU, J.C.A
ELECTION PETITION: WHAT AN ELECTION PETITION MUST BE ACCOMPANIED WITH
By paragraph 4(5) of the 1st Schedule to the Electoral Act 2010 (as amended), the Petition is expected to be accompanied by: “(a) A list of the witnesses that the petitioner intends to call in proof of the petition; (b) A written statements on oath of the witnesses; and (c) Copies or list of every documents to be relied on at the hearing of the petition.” PER ISAIAH OLUFEMI AKEJU, J.C.A
PRACTICE DIRECTION: WHETHER THE USE OF INITIALS, ALPHABETS OR COMBINATION OF BOTH IN THE LIST OF WITNESSES AND IN THE STATEMENTS OF THE WITNESSES IS PERMITTED
The Rules of the Tribunal i.e. the Election Tribunal and Practice Direction 2010 by paragraph 1 and 2 thereof permit the use of initials, alphabets or combination of both in the list of witnesses and ipso facto in the statements of the witnesses. See Abubakar vs. Yar’Adua (supra) per Tobi JSC at page 159. PER ISAIAH OLUFEMI AKEJU, J.C.A
Before Their Lordships
UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria
JOSEPH TINE TURJustice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJUJustice of The Court of Appeal of Nigeria
Between
1. HON. MKPANAM OBO-BASSEY EKPO
2. ACTION CONGRESS OF NIGERIAAppellant(s)
AND
1. NGIM OKPO KANU
2. THE RESIDENT ELECTORAL COMMISSIONER CROSS-RIVER STATE (MR. MIKE IGINI)
3. THE INDEPENDENT ELECTORAL COMMISSION
4. THE PEOPLES DEMOCRATIC PARTYRespondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A, (Delivering the Leading Judgment): This appeal is against the decision of the National and State House of Assembly Election Petition Tribunal, Holden at Calabar, contained in the ruling delivered on 2nd August, 2011 dismissing Election Petition No. EPT/CR/SA/1/2011 filed by the Appellants.
The 1st Appellant was a candidate at the election into the House of Assembly seat for Biase State Constituency conducted by the on 26th April, 2011. The 2nd Appellant was the political party that sponsored the 1st Appellant for the election. At the conclusion of the election, the 3rd Respondent declared the 1st Respondent as the win4er and the duly returned candidate.
The Appellants who were aggrieved by the declaration of the 1st Respondent as the winner of the election filed the Election Petition No. EPT/CR/SA/1/2011 on 15th May, 2011 on the grounds stated in paragraphs 38, 39 and 40 thereof as follows:
“38. The election was invalid by reason of non-compliance with the provisions of Electoral Act, 2010 (as amended).
39. The 1st Respondent was at the time of the election not qualified to contest the election.,
40. The petitioner scored the highest number of lawful votes cast but the 1st Respondent was declared winner.”
By the motion on notice filed on 12th July, 2011, the 1st Respondent moved the Tribunal for order striking out the petitioner’s reply to the 2nd and 3rd Respondents’ reply and the accompanying witness depositions of Mr. Ogettee Ekpo filed on 20th June, 2011, striking out all the petitioners’ witnesses, depositions on oath including that of the 1st Petitioner; and striking out the petition in its entirety. The reliefs were sought upon the grounds stated in the motion on notice which are:
“(i) The petitioners’ reply to the 2nd and 3rd Respondents’ reply and the witness deposition of Mr. Ogettee Ekpo offends the provisions of paragraph 16(1)(a) of First Schedule to the Electoral Act’ 2010 (as amended).
(ii) The petition is instituted and brought in a non-existent Tribunal and also the written statements of the petitioners’ witnesses are headed in none existent Tribunal and not in the court or Tribunal as required by section 90(a) of the Evidence Act Cap. E14, Laws of the Federation of Nigeria 2004. Also on 11th July, 2011 the 2nd and 3rd Respondents prayed the Tribunal to strike out the 13 witnesses’ statement on oath as attached to the petition, and thus incompetent.”
(iii) All the Petitioners’ witnesses’ depositions defend the provisions of Section 90(b) of the Evidence Act, 2004 and Section 13 of the Oaths Act, Cap. 01, Laws of the Federation of Nigeria, 2004 accordingly the petition is bereft of evidence or written statements to support or accompany it as required by paragraph 4(5)(b) of the First Schedule to the Electoral Act 2010 (as amended).
(iv) The petition is thus incompetence (sic) and the Honourable Tribunal lacks jurisdiction to entertain it.”
After hearing the parties, the Tribunal in the ruling of 2/8/2011 held that the petition was incompetent and consequently struck out the petition.
The Appellants felt aggrieved by the decision of the Tribunal and lodged an appeal against the ruling on 15th August, 2011, upon three grounds of appeal. The Appellants, in prosecution of the appeal filed the Appellants, Brief of Argument on 29th August, 2011, the 1st Respondent filed his Brief of Argument on 5th September, 2011, while the 2nd and 3rd Respondents, Brief was filed on 9th September, 2011.
The Appellants formulated two issues for determination as follows:
(a) Whether having regard to the timeliness constitutionally provided for the disposal of election petitions, the striking out of the Appellants’ petition by the Trial Tribunal at the stage it did without a full trial was not unconstitutional and a breach of the Electoral Act 2010 (as amended).
(b) Whether the right to fair hearing of the Appellants was not breached when the Tribunal based her decision to strike out the petition summarily on Section 90(b) of Evidence Act and Section 13 of the Oaths Act at the Pre-hearing stage.
The 1st Respondent filed a Notice of Preliminary Objection on 14th September, 2011, and argued the objection, on pages 5 – 8 of the 1st Respondents’ Brief of Argument filed on 5/9/2011. In the alternative, the learned counsel formulated the following two issues for determination in the appeal:
1. Whether the Election Tribunal was right in entertaining the 1st 2nd and 3rd Respondents’ objection at the pre-hearing stage and in striking out the petition at that stage.
2. Whether the Election Tribunal was right in Holding that the Petitioners/Appellants’ witnesses statements on oath contravene the provision of Section 90(b) of the Evidence Act and Section 13 of the Oath Act, and whether the striking out of those witnesses’ statements without full trial breached the Appellants’ right to fair hearing.
Also in their Brief of Argument filed on 9/9/2011, the 2nd and 3rd Respondents raised “preliminary issues for determination” on page 2 and argued same on pages 2 – 5 of the Brief. The 2nd and 3rd Respondents later on 16/9/2011 filed Notice of objection. In the alternative, the 2nd and 3rd Respondents formulated the following two issues for determination:
A. Whether the Tribunal was not correct at the pre-hearing stage it entertained the 1st, 2nd and 3rd Respondents applications challenging the competence of the petition, the (sic) being a jurisdictional issue conceded by all the Respondents consequent upon which Tribunal dismissed the petition.
B. Whether the Tribunal was right when it held that the petitioners’ witnesses on oath violated Sections 90(b) of the Evidence Act (as amended) and Section 13 of the Oaths Act thereby denying the Appellant their right to fear hearing.
The Appellants filed a Reply on Points of law on 15th September, 2011. All counsel adopted their briefs at the hearing of this appeal.
It is abundantly clear that the objections by the Respondents are not against the hearing of the appeal as envisaged by Order 10 Rule 1 of the Court of Appeal Rules, 2011, but against some of the grounds of appeal filed by the appellants. Salami, JCA in NEPA vs. Ango (2011) 15 NWLR (Pt.737) 627 at 645 stated that:
“Furthermore, a preliminary objection can only be taken against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. A preliminary objection should be capable, if successfully taken, of putting an end to the hearing of the appeal. An objection to qualify as preliminary objection should require serious argument and consideration on a point of law which if decided, one way or the other is going to be decisive of litigation.”
Since the respondents have themselves formulated issues for determination based on the appellant’s notice of appeal, the interest of substantial justice demands that this appeal be heard on its merit after all courts are created to do substantial justice by determining the cases of the parties on the merit. See Oloruntoba-Oju vs. Abdul Raheem (2009) 13 NWLR (Pt. 1157) 83, (2009) All FWLR (Pt. 497) 1.
One issue that is common to all the Briefs and therefore raised by all the parties is the striking out of the Written Statements on oath of the petitioners’ witnesses at the pre-hearing stage and the consequent striking out of the petition. This same issue came up before this Court in Appeal No. CA/C/164/2011 – William Ballantyne vs. Hon. Essien Ekpenyong Ayi & Ors. and in the unreported judgment delivered on 17th August, 2011, this court held the view that the Tribunal was not right to have struck out the petitioner’s written statements on oath at the pre-trial stage. Since this court does not possess the power to overrule itself or depart from its previous decision which has not been set aside, we abide by the decision in that case and apply the decision therein to the instant case.
Let me go a little further in this case to state that the jurisdiction of the Election Tribunal is granted in Section 285(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as well as the Electoral Act, 2010. By Section 285(1) of the constitution, the Tribunal is to determine whether:
“(a) any person has been validly elected as a member of the National Assembly, and;
(b) any person has been validly elected as a member of the House of Assembly of a State.”
It is beyond argument that the petition of the appellants met these basic provisions and therefore was cognizable by the Tribunal; after all it is settled that it is the claim of the plaintiff (this time the petitioner) that should be looked into to determine whether court has jurisdiction. See Adeyemi vs. Opeyori (1979) 9 -10 SC 31; F.B.N. vs. Abraham (2003) 18 NWLR (Pt.1118) 172.
It has not been stated by any of the parties that the Appellants’ petition does not comply with Section 138 of the Electoral Act, 2010 (as amended) which stipulates the grounds of an election petition.
The petition therefore satisfied the basic requirements of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Electoral Act, 2010 (as amended) which grant jurisdiction and authority to the Tribunal.
By paragraph 4(5) of the 1st Schedule to the Electoral Act 2010 (as amended), the Petition is expected to be accompanied by:
“(a) A list of the witnesses that the petitioner intends to call in proof of the petition;
(b) A written statements on oath of the witnesses; and
(c) Copies or list of every documents to be relied on at the hearing of the petition.”
The Rules of the Tribunal i.e. the Election Tribunal and Practice Direction 2010 by paragraph 1 and 2 thereof permit the use of initials, alphabets or combination of both in the list of witnesses and ipso facto in the statements of the witnesses. See Abubakar vs. Yar’Adua (supra) per Tobi JSC at page 159.
The provisions of section 90 of the Evidence Act 2004 are meant to be observed by persons before whom affidavits are taken which were not the appellants that were penalized for any breach thereof.
By treating the evidence of the petitioners’ witnesses as a pre-trial issue and striking them out without opportunity of adopting their written statements, the Tribunal definitely denied the appellants their right to fair hearing as guaranteed under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The rule of fair hearing requires that a party be given an opportunity or advantage in the presentation of his case. See Garba vs. University of Maiduguri (1986) 1 NWLR (Pt.16) 550; LPDC vs. Fawehinmi (1985) 2 NWLR (Pt.70) 300.
The result of the foregoing is that this appeal is allowed; the decision of the Tribunal in its ruling of 2/8/2011 striking out the Appellants’ petition is erroneous and it is set aside. The Petition No. EPT/CR/SA/1/2011 is remitted to the Tribunal for hearing.
I make no order as to costs.
UZO I. NDUKWE-ANYANWU, J.C.A: I hold the privilege of reading in draft from the judgment just delivered by my learned brother Olufemi Akeju, JCA. I agree with the reasoning and conclusions reached in the lead judgment.
The act of striking out the witness statements at the pre-trial stage is premature to say the least. The court has in a plethora of cases held that, a court will restrain itself from dealing with substantive issues at the preliminary stage.
For this and the more robust reasons in the lead judgment this appeal is allowed.
I abide by all the consequential orders in the lead judgment including that on costs.
JOSEPH TINE TUR, J.C.A: I have read the judgment delivered by my Lord Akeju, JCA, and I am in total agreement that this petition should be remitted to the Tribunal to be heard and determined on the merit.
The Election Tribunal and Court Practice Directions, 2011 came into effect on 1st day of April, 2011 before the 2nd and 3rd respondents conducted election into the House of Assembly for Biase Constituency in Cross River State on 26th day of April, 2011 declaring the 1st Respondent of the Peoples Democratic Party duly elected member of the State House of Assembly.
The Practice Directions, 2011 provides as follows:
“1. The list of witnesses referred to in Paragraph 4(5)(a) of the First Schedule to the Electoral Act, 2010 (as amended) shall be deemed complied with where the identify of the witnesses are represented by initials, alphabets or a combination of both.
2. The requirements of Paragraph 4(5) of the First Schedule to the Electoral Act, 2010 (as amended), shall apply mutatis mutandis to a petitioner’s reply and the list of witnesses there shall also be deemed complied with where the identity of the whiteness are represented by initials, alphabets or a combination or both.”
The Tribunal erred in law and in fact to have dismissed the petition based on reasons not founded under Section 140(4) of the Electoral Act, 2010 as amended read together with paragraph 53(2) of the 1st Schedule to Act. Rather the Tribunal reasoned as follows:
“Although they find and hold that 1st Petitioner’s witness statement has complied with Section 90(b) it fails to comply with the provision of Section 13 of the Oaths Act and the 1st Schedule thereof. All the Petitioner’s witnesses statements on Oath – ABD, ABE, ABF, ABG, ABH, ABJ, ABK, ABL, ABM, ABN and ABQ have failed to comply with the provisions of Section 90(b) of the Evidenc Act and Section 13 of the Oath Act on the requirement of statutory declaration in the 1st Schedule thereof. In Nkeriuka vs. Joseph (2009) 5 NWLR (Pt.1135) 505. It is held that the Court should give the words of the Oaths Act, as to the form found in the 1st Schedule, strict interpretation and application…
We say no more than to hold that all the statements of the petitioners witnesses having not complied with the provisions of the Oath Act, are not written statement on Oath as envisaged by paragraph 4(5)(b) of the 1st Schedule to the Electoral Act, 2010 (as amended) which provides that:
“4 the election petition shall be accompanied by –
(b) Written statement on Oath of the witnesses.”
Finally, we hold that any written statement on Oath of a witness is akin to an affidavit which is required by Section 90(b) of the Evidence Act to state the full name, trade or profession, residence, and nationality of the deponent and that non-compliance of the 1st petitioner’s statement and the petitioners’ witnesses’ statements on Oath is fatal. All the said statements are hereby struck out. The petition has become bare and bereft of written statement on Oath to support it, as required by paragraph 4(5) of the 1st Schedule tot eh Electoral Act (supra). Breach of the above requirements which are conditions precedent, render the entire petition incompetence. ”
The Tribunal erred to have struck out the petition on the above grounds in view of the Practice Directions, 2011.
The whole of the provisions of Section 90 of the Evidence Act 2004 is to be observed by the Commissioner of Oaths. See Ali vs. Dipcharima (1975) NWLR.
The Secretary received and filed the sworn statements. There is no miscarriage of justice.
I also allow the appeal and remit the petition to be heard on the merit.
Appearances
W. Ballantyne Esq.;For Appellant
AND
Mba E. Ukweni Esq;
Utum Eteng Esq;For Respondent
