HON. PAULINUS IGWE NWAGU V. HON. INNOCENT UGO CHIMA & ORS (2011)

HON. PAULINUS IGWE NWAGU V. HON. INNOCENT UGO CHIMA & ORS

(2011)LCN/4835(CA)

In The Court of Appeal of Nigeria

On Thursday, the 13th day of October, 2011

CA/E/EPT/26/2011

RATIO

PRELIMINARY OBJECTION: DUTY OF A RESPONDENT WHO INTENDS TO RELY UPON A PRELIMINARY OBJECTION TO THE HEARING OF AN APPEAL TO GIVE THE APPELLANT THREE CLEAR DAYS NOTICE THEREOF BEFORE THE HEARING

Now by virtue of Order 10 Rule 1 of the Court of Appeal Rules 2011, a respondent who intends to rely upon a preliminary objection to the hearing of an appeal is enjoined to give the appellant three clear days notice thereof before the hearing. This is borne out of the necessity to afford the appellant the opportunity to respond if he so desires. However, the practice of incorporating the notice of preliminary objection in the Respondent’s brief of argument has gained procedural acceptance in the Court of Appeal and the Supreme Court. See NSIRIM V. NSIRIM (1990) 3 NWLR (PT 138) 285 and AJIDE V. KELANY (1985) 3 NWLR (PT 12) 248. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

LEAVE OF COURT: WHETHER A PARTY SEEKING TO RAISE A PRELIMINARY OBJECTION IN THE BODY OF HIS BRIEF OF ARGUMENT MUST SEEK THE LEAVE OF COURT

Leave of court is not required before a respondent can raise a preliminary objection in his brief of argument. The correct position is that a Respondent who desires to have the objection raised in his brief of argument considered must seek the leave of court at the oral hearing of the appeal to move the objection before the hearing of the substantive appeal, otherwise he is deemed to have abandoned the objection. See NSIRIM V. NSIRIM supra. OKOLO V. UBN LTD. (1998) 2 NWLR (PT 539) 618; SALAMI V. MOHAMMED (2000) 9 NWLR (PT 673) 469 and MAGIT V. UNIVERSITY OF AGRICULTURE MAKURDI (2006) ALL FWLR (PT 298) 1313 at 1328 where the Supreme Court per Ogbuagu JSC put the issue clearly as follows:- “However, on a more serious note, the method of raising a preliminary objection, apart from giving the appellant, three clear days notice before the date of hearing is now firmly settled. It may be in the Respondent’s brief, by a formal separate notice or written objection or both. But there is the need for the respondent or his counsel, with the leave of the court, to move the objection before the hearing of the substantive appeal”. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

LEAVE OF COURT: CIRCUMSTANCES WHERE LEAVE OF COURT WILL AND WILL NOT BE REQUIRED TO RAISE AN APPEAL AGAINST A DECISION OF A COURT

It is trite that where an appeal is against an interlocutory decision of a court and it raises a question of facts or mixed law and facts, leave of court is required. However, an appeal is as of right and requires no leave of court, where the decision appealed against is either interlocutory or final provided the ground of appeal involves question of law alone. See Section 241 (1) (b) of the 1999 constitution. AYANSINA V. CO-OPERATIVE BANK LTD. (1994) 5 NWLR (PT 347) 742 and MADUABUCHUKWU V. MADUABUCHUKWU (2006) 10 NWLR (PT 989) 476. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

PRINCIPLE OF INTERPRETATION: POSITION OF THE LAW WHERE A STATUTORY PROVISION IS CLEAR AND UNAMBIGUOUS AS TO ITS TRUE INTENT AND PURPOSE

…it is a trite principle of interpretation that where a statutory provision is clear and unambiguous as to its true intent and purpose, effect must be given to it without recourse to any internal or external aid. See BAKARE V. NIGERIA RAILWAY CORPORATION (2007) ALL FWLR PT. 1579, ADISA V. OYINWOLA (2000) 10 NWLR (PT 674) 116, AMADI V. N.N.P.C. (2000) FWLR (PT 9) 1527, And A.G. ONDO STATE V. A.G. EKITI STATE (2001) 17 NWLR (PT 743) 706. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

PLEADINGS: WHETHER PARTIES ARE BOUND BY THEIR PLEADINGS AND EVIDENCE SOUGHT TO BE TENDERED MUST BE SUPPORTED BY PLEADINGS

It is an elementary but fundamental rule that parties are bound by their pleadings and evidence adduced, to be acceptable, must be supported by pleadings. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

SUBSTANTIAL JUSTICE: DUTY OF THE COURT TO ENSURE THAT SUBSTANTIAL JUSTICE IS DONE

In as much as it is imperative for parties to obey and adhere strictly to the clear and mandatory provisions of a statute and for the courts to ensure compliance. It seems to me that it is also left for the courts to decide whether there is substantial compliance reasonable enough to meet the justice of the case bearing in mind that the current trend in our adversarial system of adjudication strict adherence to technicalities have been done away with and preference given to substantial justice. This was the stance of the supreme court in SHUAIBU V. NIGERIA ARAB BANK LTD (1998) 5 NWLR (PT 551) 582 where it held at page 596 as follows:- “The prime duty of any court in the courts decision making is to do substantial justice and it would not allow that to be clogged with undue technicalities”. See also ABUBAKAR V. YARADUA (2009) 5 WRN 1 at 122 where the Supreme Court per Niki Tobi JSC held thus:- “I am in agreement with the Court of Appeal when the court held that full opportunity should be given to parties in the interest of justice without due regard to technicalities. Gone are the days when courts of law were only concerned with doing technical abstract justice based on avid legalism. We are now in the days when courts of law do substantial justice in the light of prevailing circumstances of the case. It is my hope that, the day of doing technical justice will not surface again”. See also USMAN V. UMARU (2001) FWLR (PT 70) 1544 where this court re-echoed the stance of the Supreme court on technicalities as follows:- “I think it is necessary I must reiterate the fact that our courts have deliberately shifted away from the narrow technical approach to justice which characterized some earlier decisions of courts on the issue of technicality. Instead, they now pursue the course of substantial justice”. See also AFOLABI V. ADEKUNLE (1983) 2 SCNLR 141; GWANTO V. STATE (1983) 1 SCNLR 142; OLUBODE V. SALAMI (1985) 2 NWLR (PT 7) 282 and EWEKA V. RAWSON (2001) FWLR (PT 67) 999. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

JUSTICES

ABUBAKAR JEGA ABDULKADIR (PRESIDING JUSTICE) Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

HON. PAULINUS IGWE NWAGU Appellant(s)

AND

1. HON. INNOCENT UGO CHIMA
2. ALL NIGERIA PEOPLES PARTY (ANPP)
3. PEOPLES DEMOCRATIC PARTY (PDP)
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) AND 175 OTHERS Respondent(s)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the National and State Houses of Assembly Election Tribunal Coram (H.A. Olusiyi J., P.I. Imoedemhe J. and B.M. Tukur J.) sitting in Abakaliki, Ebonyi State in Petition No. EB/EPT/SEN/1/2011 delivered on the 16th day of August 2011.
The Petitioners (now the Respondents) had by a motion on notice dated 8/8/2011 and filed on 10/8/2011 sought the following orders from the said Tribunal, hereinafter referred to as (the trial tribunal). To wit:-
1. Leave of the Honourable Tribunal to file and make use of written statement on oath of an Expert witness and further written statement on oath of the 1st petitioner.
2. Leave of the Honourable Tribunal to file and make use of a witness whose statement on oath was not filed along with the petition.
3. Leave of the Honourable Tribunal to file and make use of Additional List of documents, which was not filed along with the petition.
4. An order of the Honourable Tribunal deeming the written statement on oath of an Expert witness, further written statement on oath of the 1st petitioner, the list of Additional witness and list of additional documents exhibited in the affidavit in support of this application marked A1 – A2 and 81 – 82 respectively as properly filed and served, the appropriate filing fees having been paid.
The grounds for the application were listed as follows:-
1. The Honourable Tribunal made an order for inspection, scanning and making copies of electoral materials used in the election dated 26/5/11.
2. The Petitioners have carried out the order of the Tribunal.
3. The need for additional statement on oath and statement on oath of the expert witness arose from the findings made from the inspection, scanning and analysis of electoral materials as ordered by the Honourable Tribunal.
The said motion on notice is supported by an 11 paragraph affidavit and attached to it are Exhibits ‘A1’, ‘A2’, ‘B1 – B2’ and ‘C’ . (See pages 78 – 113 of the Record of Appeal).
A written address in support was also filed with the said motion on notice.
The 1st Respondent at the trial tribunal (now the Appellant) reacted by filing a counter affidavit of 19 paragraphs and a written address in opposition to the motion on notice dated 15/8/2011.
The 2nd Respondent also opposed the application by filing a 7 paragraph counter affidavit and a written statement in support on 16/8/11.
At the hearing of the said motion on notice on the 16/8/11, the parties adopted and relied on their written addresses. Thereafter the trial tribunal in a considered ruling delivered on the same 16/8/11 granted the application.
Being aggrieved with the said Ruling, the appellant filed a Notice of Appeal on 5/9/11. The said notice contained two grounds of appeal which shorn of their particulars reads as follows:-

GROUND 1
The Honourable Tribunal erred in Law when it held as follows:-
“Straightaway, we hold that prayer 1 is sufficient prayer by the petitioner/applicants for leave for the petitioners to apply for leave to file and make use of a written statement on oath of an expert witness etc…..
It may not have been couched in very clear terms but we find it adequate for the prayers of paragraph 47 (1) of the first schedule to the Electoral Act 2010 as amended”.

GROUND 2
The Honourable Tribunal erred in law and in fact when it held that by granting the application the respondent (Appellant) will not be prejudiced in anyway or overreached.
Briefs of argument were subsequently filed and served and at the hearing of the Appeal on 11/10/11, the parties duly adopted and relied on their respective briefs of argument.
The appellant’s brief of argument dated and filed on 26/9/2011 was settled by Yusuff Ali SAN with N.O. OKE SAN, N.C. Ughanza Esq., Anthony Oka Esq., Etukwu Ona Esq., O.D. Abdulkarim Esq., S.A. Oke Esq. and Victor C. Alo.
The 1st and 2nd Respondent’s brief of argument dated 27/9/11 and filed on 30/9/11 was settled by Prof. Ilochi Okafor SAN together with Arthur Obi Okafor SAN, O.J. Nnadi SAN, Chukwudi C. Okaa Esq. and I.T. Nwanegbo Esq.
The 3rd Respondent though filed a brief of argument on 28/9/2011 but this was withdrawn and consequently struck out by this court on 11/10/11.
The 4th Respondent did not file any brief of argument.
In the appellant’s brief of argument three issues were distilled for determination as follows:-
1. Whether considering the state of the provision of paragraph 47 (1) of the first schedule of the Electoral Act, prayer 1 of the motion on notice filed by the petitioners who are the 1st and 2nd Respondents herein qualify for leave as contemplated by the said paragraph.
2. Whether the Honourable Tribunal ought to have given a literal interpretion of the unambiguous and clear provisions of the said paragraphs of the 1st schedule to the Electoral Act.
3. Whether exceptional circumstances was shown by the applicants in the motion, i.e. the 1st and 2nd Respondents herein.
Apart from a preliminary objection, the 1st and 2nd Respondents in their own brief of argument formulated three issues for determination as follows:-
1. Whether the notice and grounds of appeal and in fact the appeal is competent.
2. Whether the petitioners showed exceptional circumstances to warrant being granted leave of the tribunal to file and use a statement on oath of an expert witness and additional statement on oath of 1st petitioner.
3. Whether the tribunal exercises of discretion to allow the petitioners make use of the outcome of the inspection of materials to maintain their petition was right.
As earlier indicated, the 1st and 2nd Respondents in their brief of argument raised a preliminary objection challenging the competence of this appeal. The Grounds for the objection are as follows:-
1. The grounds of appeal questions the discretion of the court in granting leave to the petitioners/applicant/Respondent to file and make use of the additional evidence on oath of witnesses the outcome of inspection of materials.
2. The issue of discretion of the court are based on the evaluation of material facts placed before the court.
3. The issue of discretion of the court are mixed law and facts.
4. The appellants require leave of court to bring the appeal.
In a curious turn of events however, the 1st and 2nd Respondents did not proceed to profer arguments on the said preliminary objection but rather jumped to issues for determination of the appeal. A closer look at the issues so raised however revealed that issue No. 1 relates to the preliminary objection. This no doubt shows a case of pure tardiness in the preparation of the brief of argument. A notice of preliminary objection stands on its own entirely because if it is upheld it has the effect of terminating the appeal. See AFRIBANK PLC V. AKWARA (2006) 5 NWLR (PT 974) 619.
Consequently, arguments in support of a preliminary objection are not to be subsumed or juxtaposed with arguments in the main appeal. The easier way out of this odd channel of confusion and absurdity is to go the extra mile in picking the argument in support of the preliminary objection (that is issue No.1) from that of the main appeal for what it is worth.
Dwelling on whether the Notice and ground of Appeal and in fact the appeal is competent, C.C. Okaa of counsel for the 1st and 2nd Respondents submitted that the appellants require leave of this court to bring the appeal. He referred to authorities in support as well as Section 241 (1) (b) of the 1999 constitution.
He added that the leave of court is required to appeal against issues of mixed law and fact and failure to obtain leave makes the notice of appeal incompetent and cannot sustain the appeal. He cited IFEDIORAH V. UMEH (1998) 2 NWLR (PT 74) 667, NBN V. NET (1986) 3 NWLR (PT 31) 667 and DAHUWAS V. ADENIRAN (1986) 4 NWLR (PT 34) 264 at 271.
He then urge this court to strike out or dismiss the appeal.
Replying on the preliminary objection, Yusuf Ali (SAN) of counsel for the appellant submitted that the preliminary objection did not comply with Order 10 Rule 1 of the Court of Appeal Rules 2011 because the appellant was not given three clear days notice before the hearing. He added that since the 1st and 2nd Respondents wished to raise their preliminary objection in the brief of argument they ought to first of all seek the leave of court and since there is no application for leave, the notice of preliminary objection is incompetent.
Now by virtue of Order 10 Rule 1 of the Court of Appeal Rules 2011, a respondent who intends to rely upon a preliminary objection to the hearing of an appeal is enjoined to give the appellant three clear days notice thereof before the hearing. This is borne out of the necessity to afford the appellant the opportunity to respond if he so desires. However, the practice of incorporating the notice of preliminary objection in the Respondent’s brief of argument has gained procedural acceptance in the Court of Appeal and the Supreme Court. See NSIRIM V. NSIRIM (1990) 3 NWLR (PT 138) 285 and AJIDE V. KELANY (1985) 3 NWLR (PT 12) 248.
Thus where as in this case the notice of preliminary objection is incorporated in the brief of argument filed by the 1st and 2nd Respondents, the requirement of three days notice is deemed to have been satisfied because the said brief of argument was filed on 30/9/11 while the hearing of the preliminary objection was on 11/10/11. On the contention of the appellant’s counsel that a party seeking to raise a preliminary objection in the body of the brief of argument must seek the leave of court. This with due respect is not the correct position of the law. Leave of court is not required before a respondent can raise a preliminary objection in his brief of argument. The correct position is that a Respondent who desires to have the objection raised in his brief of argument considered must seek the leave of court at the oral hearing of the appeal to move the objection before the hearing of the substantive appeal, otherwise he is deemed to have abandoned the objection. See NSIRIM V. NSIRIM supra. OKOLO V. UBN LTD. (1998) 2 NWLR (PT 539) 618; SALAMI V. MOHAMMED (2000) 9 NWLR (PT 673) 469 and MAGIT V. UNIVERSITY OF AGRICULTURE MAKURDI (2006) ALL FWLR (PT 298) 1313 at 1328 where the Supreme Court per Ogbuagu JSC put the issue clearly as follows:-
“However, on a more serious note, the method of raising a preliminary objection, apart from giving the appellant, three clear days notice before the date of hearing is now firmly settled. It may be in the Respondent’s brief, by a formal separate notice or written objection or both. But there is the need for the respondent or his counsel, with the leave of the court, to move the objection before the hearing of the substantive appeal”.
In the instant case, at the hearing of the substantive appeal on 11/10/11 the counsel for the 1st and 2nd Respondents with the leave of this court moved the objection, so it is on a sound footing in this regard.
Now dwelling on the submission of learned counsel that leave of this court ought to be sought in bringing the appeal because the grounds of appeal hinges on mixed law and facts. It is trite that where an appeal is against an interlocutory decision of a court and it raises a question of facts or mixed law and facts, leave of court is required. However, an appeal is as of right and requires no leave of court, where the decision appealed against is either interlocutory or final provided the ground of appeal involves question of law alone. See Section 241 (1) (b) of the 1999 constitution.
AYANSINA V. CO-OPERATIVE BANK LTD. (1994) 5 NWLR (PT 347) 742 and MADUABUCHUKWU V. MADUABUCHUKWU (2006) 10 NWLR (PT 989) 476.
In the instant case, a perusal of the two grounds of appeal as filed by the appeal and earlier reproduced in this judgment discloses to my mind that they raised, not issues of mixed law and facts as contended by the 1st and 2nd Respondent but that of law. A ground of appeal does not metamorphose to question of law or mixed law and facts or facts alone by mere appellations but by a due examination of the grounds of appeal as framed with the particulars.The grounds of appeal with the particulars as presented by the appellant can conveniently be held to have been based on law alone. In the circumstance I am of the view that the preliminary objection lacks merit and it is hereby dismissed.
I will now consider the issues raised in the substantive appeal. After a perusal of the Ruling of the trial tribunal, the grounds of appeal and the briefs of argument with particular reference to the issues raised therein, I am inclined to adopt the three issues raised in the appellant’s brief of argument for a conclusive determination of this appeal.
ISSUE No. 1
Arguing on this issue Yusuf Ali SAN of counsel for the appellant submitted that it is only motions filed within the pretrial Session that the court has jurisdiction to hear except in extreme circumstances, onus of proof of which is on the applicant. He added that for an applicant to be entitled to bring a motion outside the pre hearing he must first seek leave of the tribunal or court and secondly establish extreme circumstances.
Learned senior counsel referred to motion filed in the trial tribunal by the 1st and 2nd Respondents wherein they sought leave to file and make use of written statement on oath of an expert witness and further written statement on oath of the 1st petitioner. It is this leave that the trial tribunal ruled that it amounted to leave within the contemplation of paragraph 47 (1) of the 1st schedule to the Electoral Act. He contended that this cannot be correct because the leave of the trial tribunal ought to be sought to bring the application before leave is sought to seek the reliefs or prayers as contained in the motion in question. Furthermore, he says, the leave contemplated for additional statement on oath is different from leave contemplated by paragraph 47 (1) of the 1st schedule to the Electoral Act 2010 as amended.
Learned senior counsel further submitted that where legislation lays down a procedure for doing a thing, there should be no other method of doing it. Citing the case of ADESAONYE & ORS V. ADENALE (2006) ALL FWLR (PT 340) 1000 at 1003 and INAKOJU V. ADELEKE (2007) ALL FWLR (PT 353) 3 at 22, he contended that the courts are bound to enforce the mandatory provisions of a substantive law.
For the 1st and 2nd Respondents, it was submitted by their learned counsel that the complain of the appellant that no leave was sought before bringing the motion in dispute as required by paragraph 47 (1) of the 1st schedule to the Electoral Act 2010 is unfounded because the relief sought was couched as follows:-
”For leave of the Honourable tribunal to file and make use of written statement on oath of an expert witness and further written statement on oath of the 1st petitioner”.
This according to learned counsel, the trial tribunal in the exercise of its discretion duly granted. He added that the granting of leave under paragraph 47 (1) is a judicial discretion and the trial tribunal exercised that discretion judicially and judiciously.
Now paragraph 47 (1) of the 1st schedule to the Electoral Act 2010 as amended provides as follows:-
“No motion shall be moved and all motions shall come up at the pre hearing session except in extreme circumstances with leave of tribunal or court”.
The above provision is to my mind very clear and unambiguous and it is a trite principle of interpretation that where a statutory provision is clear and unambiguous as to its true intent and purpose, effect must be given to it without recourse to any internal or external aid. See BAKARE V. NIGERIA RAILWAY CORPORATION (2007) ALL FWLR PT. 1579, ADISA V. OYINWOLA (2000) 10 NWLR (PT 674) 116, AMADI V. N.N.P.C. (2000) FWLR (PT 9) 1527, And A.G. ONDO STATE V. A.G. EKITI STATE (2001) 17 NWLR (PT 743) 706.
The contention of the appellant is that the trial tribunal did not correctly apply the provisions of paragraph 47 (1) of the 1st schedule to the Electoral Act 2010 as amended in it’s Ruling, the subject matter of this appeal in that the leave of the tribunal ought to be first sought and obtained before the 1st and 2nd Respondent can bring the motion as presently couched.
The 1st and 2nd Respondents had on completion of the inspection of the electoral materials brought the aforesaid motion seeking the following reliefs:-
”1. Leave of the Honourable Tribunal to file and make use of written statement on oath of an Expert witness and further written statement on oath of the 1st petitioner.
2. Leave of the Honourable Tribunal to file and make use of a witness whose statement on oath was not filed along with the petition.
3. Leave of the Honourable Tribunal to file and make use of additional list of documents which was not filed along with the petition.
4. An order of the Honourable Tribunal deeming the written statement of an Expert witness, further written statement on oath of the 1st petitioner, the list of additional witness and list of additional documents exhibited in the affidavit in support of the application and marked A1 – A2 and B1 – B2 respectively as properly filed and served, the appropriate filing fees having been paid”.
The lower tribunal in it’s Ruling on the said motion held inter alia as follows:-
We have considered all the materials placed before us. We have heard learned counsel on both sides. The main issue for determination here is within a narrow coupon; to writ: whether the petitioner have sought for leave of the tribunal to bring this application at this stage and if so whether the respondents will be prejudiced in any way if this application is granted.
Straightaway, we hold that prayer 1 is a sufficient prayer by the petitioner/applicants for leave for the petitioners to apply for leave to file and make use of a written statement on oath of an expert witness, etc.
It may not have been couched in very clear terms but we find it adequate for the prayers of paragraph 47(1) of the First Schedule to the Electoral Act, 2010, as amended.
By granting these application the respondents will not be prejudiced in anyway as it does not change the rules of pleadings. It is an elementary but fundamental rule that parties are bound by their pleadings and evidence adduced, to be acceptable, must be supported by pleadings.
A careful perusal of the above reproduced portion of the trial tribunal’s ruling discloses no intention on its part to ignore the provisions of paragraph 47 (1) of the 1st schedule to the Electoral Act 2010 as amended. To my mind, the said provision was duly taken cognizance of in the Ruling and in the exercise of the discretion conferred on it therein, it deemed it expedient to accept the prayers as couched in the 1st and 2nd Respondents motion as sufficient to satisfy the requirements of paragraph 47 (1) aforementioned and I agree with the conclusion- that:-
“It may not have been couched in very clear terms but we find it adequate for the prayers of paragraph 47 (1) of the first schedule to the Electoral Act 2010, as amended”.
In as much as it is imperative for parties to obey and adhere strictly to the clear and mandatory provisions of a statute and for the courts to ensure compliance. It seems to me that it is also left for the courts to decide whether there is substantial compliance reasonable enough to meet the justice of the case bearing in mind that the current trend in our adversarial system of adjudication strict adherence to technicalities have been done away with and preference given to substantial justice. This was the stance of the supreme court in SHUAIBU V. NIGERIA ARAB BANK LTD (1998) 5 NWLR (PT 551) 582 where it held at page 596 as follows:-
“The prime duty of any court in the courts decision making is to do substantial justice and it would not allow that to be clogged with undue technicalities”.
See also ABUBAKAR V. YARADUA (2009) 5 WRN 1 at 122 where the Supreme Court per Niki Tobi JSC held thus:-
“I am in agreement with the Court of Appeal when the court held that full opportunity should be given to parties in the interest of justice without due regard to technicalities. Gone are the days when courts of law were only concerned with doing technical abstract justice based on avid legalism. We are now in the days when courts of law do substantial justice in the light of prevailing circumstances of the case. It is my hope that, the day of doing technical justice will not surface again”.
See also USMAN V. UMARU (2001) FWLR (PT 70) 1544 where this court re-echoed the stance of the Supreme court on technicalities as follows:-
“I think it is necessary I must reiterate the fact that our courts have deliberately shifted away from the narrow technical approach to justice which characterized some earlier decisions of courts on the issue of technicality. Instead, they now pursue the course of substantial justice”.
See also AFOLABI V. ADEKUNLE (1983) 2 SCNLR 141; GWANTO V. STATE (1983) 1 SCNLR 142; OLUBODE V. SALAMI (1985) 2 NWLR (PT 7) 282 and EWEKA V. RAWSON (2001) FWLR (PT 67) 999.
In the instant case, I am of the firm view that the trial tribunal stood on the solid ground of substantial justice when in its ruling, it granted the reliefs as sought in the 1st and 2nd Respondents motion filed on 10/8/2011 by holding that it was adequate for the purposes of paragraph 47(1) of the 1st schedule to the Electoral Act 2010 as amended. Issue No. 1 is therefore resolved against the appellant.
On issue No. 2, that is whether the Honourable Tribunal ought to have given a literal interpretation to the unambiguous and clear provisions of the said paragraph of the 1st schedule to the Electoral. To my mind this issue has been fully dealt with in the consideration of issue No. 1. It will therefore serve no meaningful purpose to embark on the same voyage a second time.
On issue No. 3, it was the contention of the learned counsel for the appellant that the 1st and 2nd Respondents never made any effort to show extreme circumstances to be granted their prayer and it follows, that the trial tribunal acted outside it’s jurisdiction to grant a party that which he did not pray for or justify. He referred to the 11 paragraph affidavit in support of the motion to argue that it did not show any circumstance to warrant bringing the application.
In response; learned counsel for the 1st and 2nd Respondents referred to the case of AJAGBE V. BABALOLA (2010) 41 WRN 81 at 100 where the Court of Appeal interpreting paragraph 6 (1) of the Election Tribunal and court Practice Directions 2007 which are in Pari Materia with paragraph 47 (1) of the 1st schedule held that:-
“The above provisions empower the Tribunal to grant the orders sought if it is satisfied that the applicant has disclosed exceptional circumstances to warrant its grant outside the pre-hearing session”.
He added that exceptional circumstances having been shown, the trial tribunal rightly exercised it’s discretion in granting the application as evidenced in its Ruling.
Now the full import of paragraph 47 (1) earlier reproduced, is that no motion shall be moved out side pre hearing session unless a party seeking to do so shows extreme circumstance and with the leave of the tribunal. The three grounds proffered by the 1st and 2nd Respondents in their motion on notice are that:-
1. The Honourable Tribunal made an order for inspection (sic), scanning materials used in the election dated 26/5/2011.
2. The petitioners have carried out the order of the Tribunal.
3. The need for additional statement on oath and statement on oath of the expert witness arose from the findings from the inspection materials as ordered by the Honourable Tribunal.
Equally of interest are paragraphs 3, 4, 6 and 7 of the affidavit in support of the motion. They read thus:-
1. That on the 26th day of May, 2011 the Honourable Tribunal made an order granting the petitioners applications to inspect the electoral materials used in the questioned election which are in the custody of the 3rd respondent.
2. That the tribunal also granted the petitioners’ application to be allowed to invite an expert witness and make use of findings of the opinion of the said expert at the hearing of the petition.
3. That sequel to the findings of the expert witness and the approval by the 3rd respondent to make available to the petitioners Certified True Copies of the Voters Register from the questioned polling units, ballot papers and result sheets from the questioned polling units, it became necessary that the 1st petitioner should file additional statement on oath, which is annexed hereto as Exhibit A1.
4. That pursuant to paragraphs 5 and 6 above, it is also necessary to file List of Additional/Further Statements of Exhibit A2 and Exhibit A1 respectively and List of additional documents.
To my mind, having regard to the clear objective of the application, the above paragraphs of the affidavit as well as the grounds for the application discloses circumstance extreme enough to warrant the trial tribunal to grant the application. To justify its action the trial tribunal in its ruling posited thus:-
Since the Tribunal granted the petitioners/applicants leave to inspect documents used for the election in question if will not be fair to stop them from bringing in the result of that inspection, which is the grammer of this application.
We do not see how the petitioners/applicant will overrule (sic) the respondents if this application is granted since they will always have the opportunity to put up their defence to the case as presented by the petitioners”.
Paragraph 47 (1) of the 1st schedule to the Electoral Act 2010 as amended did not define the term “extreme circumstance. Consequently, I believe that it behoves the trial tribunal to decide albeit judiciously and judicially, what constitutes extreme circumstance and this can be discerned from the peculiar circumstances of each case. In other words, paragraph 47 (1) gives the tribunals ample elbow room to exercise their discretionary powers in deciding what is acceptable as extreme circumstances and this cannot be unduly interfered with unless it is shown that such exercise of discretion by the trial tribunal concerned is manifestly wrong, arbitrary, reckless or injudious. See CHIKERE V. OKEGBE (2000) 12 NWLR (PT 681) 274; DEMUREN V. ASUNI (1967) ALL NLR 94; UZOCHI V. ONYENWE (1999) 1 NWLR (PT 590) 288 and IDEOZU V. OCHOMA (2006) ALL FWLR (PT 308) 1183 where the supreme court held that:-
“An appellate court will interfere with the exercise of discretion by a trial court if the discretion was exercised on wrong or inadequate material in that no weight or no sufficient weight has been given to relevant considerations”
In the instant case, I am of the firm view that the trial tribunal rightly and convincingly exercised it’s discretion within the ambit of paragraph 47 (1) of the 1st schedule to the Electoral Act 2010 as amended. This issue is accordingly resolved against the appellant.
On the whole, this appeal is found to be lacking in merit and it is hereby dismissed.
The Ruling of the National and State Houses of Assembly Tribunal sitting in Abakaliki, Ebonyi State and delivered on the 16th day of August 2011 in PETITION NO. EB/EPT/SEN/1/2011 is hereby affirmed.
N10, 000 cost is awarded against the appellant in favour of the 1st and 2nd Respondents.