LawCare Nigeria

Nigeria Legal Information & Law Reports

HON. SALIHU ISAH BASHIR & ANOR v. YUSUF ISAH KURDULA & ORS (2019)

HON. SALIHU ISAH BASHIR & ANOR v. YUSUF ISAH KURDULA & ORS

(2019)LCN/13785(CA)

In The Court of Appeal of Nigeria

On Monday, the 26th day of August, 2019

CA/S/EPT/HR/5M/2019(R)

 

JUSTICES

AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

1. HON. SALIHU ISAH BASHIR
2. PEOPLES DEMOCRATIC PARTY (PDP) Appellant(s)

AND

1. YUSUF ISAH KURDULA
2. ALL PROGRESSIVE CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. RESIDENT ELECTORAL COMMISSIONER (SOKOTO STATE)
5. THE RETURNING OFFICER, TANGAZA/GUDU FEDERAL CONSTITUENCY
6. THE ELECTORAL OFFICER, TANGAZA LOCAL GOVERNMENT
7. THE ELECTORAL OFFICER, GUDU LOCAL GOVERNMENT
8. THE LOCAL GOVERNMENT COLLATION OFFICER, TANGAZA LOCAL GOVERNMENT
9. THE PRESIDING OFFICER, INEC GINJO DISPENSARY POLLING UNIT
10. THE PRESIDING OFFICER, INEC RUWA WURI PRI. SCHOOL POLLING UNIT
11. THE PRESIDING OFFICER, INEC NUKURU POLLING UNIT
12. THE PRESIDING OFFICER, INEC TSITSE POLLING UNIT
13. THE PRESIDING OFFICER, INEC CHEKEHI POLLING UNIT
14. THE PRESIDING OFFICER, INEC BARKATUBE POLLING UNIT
15. THE PRESIDING OFFICER, INEC GURAME BAKIN KASUWA POLLING UNIT
16. THE PRESIDING OFFICER, INEC GWABRO POLLING UNIT Respondent(s)

RATIO

WHETHER OR NOT A DECISION MADE BY A TRIAL COURT ON WRONGFUL ADMISSION OR REJECTION OF EVIDENCE IS PART OF THE MAIN TRIAL AND NOT AN INTERLOCUTORY DECISION

The settled position of law is that a decision made by a trial Court on wrongful admission or wrongful rejection of evidence is part and parcel of the main trial and not an interlocutory decision in the real sense of the word that requires leave of Court to appeal, unless a special case has been made in respect of the issue. See Okobia vs. Ajanya (1998) 6 NWLR (Pt. 534) 348 at 360; Daisi vs. Oloto (2012) LPELR 8561 (CA); Ogige vs. Obiyan (1997) 10 NWLR (Pt. 524) 179.
Thus, a party appealing against the final judgment of the Court is entitled to include as one of the grounds of appeal, a ground or grounds alleging that inadmissible evidence had been admitted during trial or admissible evidence had been rejected without the necessity to seek leave of Court to do so. In Onwe vs. Nwa Oguinya (2001) 1 SC (Pt. 1) 22 wherein Ejiwunmi, JSC, quoted in approval the decision of Muhammad, JSC in Onchi Okobia vs. Mamodu Ajanya & Anr (1998) 6 NWLR (Pt. 554) 348, the Apex Court in restating the position of the law after reviewing some of its earlier decisions emphatically stated thus: –
?A decision made by the trial Court on wrongful admission of evidence or wrongful rejection of evidence is part of the main trial and not an interlocutory decision unless a special case has been made in respect of the issue. Thus a party wishing to appeal against the judgment of the trial Court can file one of the grounds of appeal alleging that inadmissible evidence had been rejected. Both are fundamental as the error might occur a miscarriage of justice. PER WAMBAI, J.C.A.

WHETHER OR NOT A COMPLAINT AGAIST WRONGFUL REJECTION OR ADMISSION OF EVIDENCE IS REGARDED AS BEING AGAINST THE COURT’S INTERLOCUTORY DECISION

The settled position of the law is that a complaint against wrongful rejection or admission of evidence is never regarded as being against the Court’s interlocutory decision. In the case of ONWE vs. OKE (2001) 3 NWLR (PT.700) 406 AT 418 the apex Court per EJIWUNMI, JSC had this to say on the subject;
“Ordinarily, where an Appellant failed to appeal against an interlocutory Order or Ruling, of a trial Court, within the time prescribed by Section 25(2)(a) of the Court of Appeal Act, 1976 he must obtain the leave the Court for his Appeal to be competent. Where on the other hand the competence of the Appeal against the Ruling is concerned with the wrongful rejection of evidence, such an Appellant would not require the leave of Court as the Ruling Appealed against is not regarded as an interlocutory decision. The Appellant may therefore include the ground of Appeal against the Ruling of the trial Court when appealing against the final judgment of the trial Court.”
(Underlined, that of Court for purposes of emphasis)
See also the cases of OKOBIA vs. AJANYA (1998)6 NWLR (PT. 554) 348 AT 360; ALABI vs. ALABI (2008) ALL FWLR (PT. 418) 245 AT 279. PER OHO, J.C.A.

AMINA AUDI WAMBAI, J.C.A. (Delivering the Lead Ruling): The Appellants/Applicants were the petitioners in election petition No. EPT/SKT/HR/04/2019 before the National and State Houses of Assembly Election Petition Tribunal, Sokoto. Respondents were the Respondents to the petition. In the course of trial, the Election Petition Tribunal (now called the Lower Court) on the 17th June 2019 turned down, upon objection by the Respondents? counsel, the Appellants/Applicants? request to call a subpoenaed witness to testify. Final judgment was delivered on 5th August, 2019 against the Appellants/Applicants and they have by this motion applied to this Court seeking the following reliefs:
?1. Extension of time within which to seek leave to appeal against the ruling of National and State Houses of Assembly Election Tribunal, Sokoto State delivered on 17th June, 2019 in Petition No. EPT/SKT/HR/04/2019;
2. Leave to appeal against the aforesaid ruling and;
3. Extension of time within which to file Appeal against the aforesaid ruling.
4. Leave and order of this Honourable Court to incorporate the interlocutory

1

grounds in the final Notice of Appeal against the judgment in Petition No. EPT/SKT/HR/04/2019, if prayers 1, 2 and 3 are granted.
5. And any other order or orders the Honourable Court may deem fit to make in the circumstances of this case.?

The grounds upon which the application is predicated are that:
(i) The Applicants? proposed grounds of appeal are at best pure grounds of mixed law and fact.
(ii) The leave of this Honourable Court is required for the applicants to bring the appeal on those grounds.
(iii) The time limited for bringing the appeal has lapsed.
(iv) Leave and order of Court is required to incorporate the grounds from the Ruling with the final Notice of Appeal against the judgment.
(v) Interest of justice would best be served if this application as made is granted.

In support of the application is an affidavit of 10 paragraphs deposed to by Hassan Usman, litigation Secretary in Gamzaki Law Chambers. Attached to the affidavit are 3 exhibits namely; the proposed Notice of Appeal, the proceedings of 17/6/2019 and the final judgment of the lower Court, marked as Exhibits ?A?,

2

?B? and ?C? respectively. Reliance was placed on all in urging us to grant the application.

In opposing the application, the 2nd Respondent filed a 5 paragraphs counter-affidavit deposed to by one Mary Jane Abubakar. On their part, Chief J. E. Ochidi and Chief S. U. Nwoke on behalf of the 1st and 3rd Respondents respectively, opposed the application on points of law.

The contention of Chief J. E. Ochidi for the 1st Respondent is that the time for appealing against the interlocutory decision having admittedly elapsed, this Court is not vested with jurisdiction to extend time for the Appellants/Applicants to appeal the said decision, pointing out that unlike Section 24 of the Court of Appeal Act which he argued does not avail the applicants, paragraph 6 of the Election Tribunal and Court Practice Directions 2011 applicable to this application, makes no distinction between an interlocutory decision and a final judgment which must be filed within 21 days from the date of the decision. To fortify his position that this Court lacks the jurisdiction to grant the application, he relied on the cases of Sidi Ali vs. PDP (2004) All

3

F.W.L.R (Pt. 189) 1159, Bouwe vs. Erijo (2005) All FWLR (Pt. 264) 872, 887 and Balogun vs. Odumosu (1999) 2 NWLR (Pt. 592) 590 at 597.

His further reason why the application should be refused is that the application itself is defective, the said decision having already been appealed against without an order of Court or a deeming order.

These arguments were adopted by the 2nd Respondent?s counsel, Chief S. U. Nwoke who in addition to relying on the counter-affidavit particularly paragraphs 4(c), (d) and (e), also submitted that paragraph 6 of the Election Tribunal and Court Practice Direction 2011 leaves no discretion for the court to exercise ? PDP vs. INEC (2014) 17 NWLR (Pt. 1437) 525 and that the applicants offered no reason why they did not appeal within time as the only reason stated at paragraph 4(ii) of their affidavit is not cogent enough.

In his reply, learned Appellants?/Applicants? counsel Anayo Ilo, Esq., disagreed with and belied the Respondents? position. He posited that paragraph 45 of the 1st Schedule to the Electoral Act empowers this Court to extend time for applicants to appeal, stressing further

4

that paragraph 6 of the Election Tribunal and Court Practice Direction 2011, refers to final judgment and not to interlocutory decision. He argued that it is the practice that interlocutory appeals are deferred until final judgment, as held in the cases of Ilo Abachaie vs. Ilo Abachaie (2005) 9 NWLR (Pt. 930) 362 (CA) and Muhammad vs. Olawunmi (1990) 21 NSCC (Pt. 2) 36, 47 SC, contending further that the Practice Directions 2011, does not derogate from the sacroscant provision of Section 24(2) (a) of the Court of Appeal Act.

Finally, learned counsel submitted that having being seised of the matter, this Court is empowered by virtue of Section 15 of the Court of Appeal Act, 2004 to do anything towards the attainment of justice of the case, urging us to grant the application.
The issue in this application is simple, slim and narrow.

It is whether the Appellants/Applicants be permitted to include in their appeal against the final judgment, their complaint against the decision of the lower Court refusing subpoenaed witnesses from testifying on behalf of the Appellants/Applicants, the said decision having been handed down on 17/6/2019.

5

The 2nd Respondent?s reasons for objecting to the grant of the application are captured at paragraphs 4(b), (c), (d), (e) and (f) of the counter-affidavit. They read thus: –
?4(b) That the Appellants/Applicants did not appeal against the said ruling within the time allowed by the extant law.
(c) That the Appellants/Applicants have brought this application to file an appeal outside the time allowed by law to do so.
(d) That this Court has no power to extend time within which the Appellants/Applicants can appeal against the ruling.
(e) That the Applicants have not given any or reasonable explanation why they could not appeal within the time allowed by the law.
(f) That the 2nd Respondent will be greatly prejudiced if the application of the Applicants is granted.

Similarly, the 1st Respondent?s legal objection oscillates round the same reason, that paragraph 6 of the Election Tribunal and Court Practice Direction inhibits this Court from doing so.
?
On the part of the Appellants, the germane reasons for the application are captured at paragraphs 4(i), (ii), (iii), (v) and (vi) of their supporting affidavit. They

6

are here reproduced: –
?4(i) That on the 17th day of June, 2019 the Honourable Tribunal in the course of hearing of Petition No. EPT/SKT/HR/04/2019, handed down a ruling refusing witnesses subpoenaed at the instance of the Petitioners (Applicants herein) from giving evidence in the petition.
(ii) That the Petitioners being dissatisfied could not appeal against the said Ruling within the time allowed by the law because of the need to concentrate in prosecuting the Petition to logical conclusion, in view of the peculiar nature of election matters where time is of very essence.
(iii) That the final judgment in the Petition having been delivered on 5th August, 2019, it become necessary to do a composite appeal against the judgment of the Tribunal, incorporating the interlocutory ruling with the final judgment.?
(v) That in the circumstance mentioned above, wise counsel dictates that leave of this Honourable Court be sought and obtained to appeal against the ruling.
(vi) That leave of Court of Appeal is also required to incorporate the grounds of appeal against the ruling with the final Notice of Appeal against the

7

judgment delivered on 5th August, 2019.

It is pertinent to observe from the outset that it is clear to us from the picture we have of this application as painted by the affidavit evidence and the facts on record, that the only paramount question attracting our attention and deserving of resolution is whether the said decision refusing the Appellants/Applications? subpoenaed witnesses from testifying is an interlocutory decision requiring leave of Court to appeal and time having elapsed, extension of time to seek the leave to appeal. Without any much circumlocution, our simple answer to this poser is in the negative; a resounding ?NO?. I say so because the Appellants/Applicants complaint against the ruling is that the evidence of the subpoenaed witnesses were wrongfully rejected by the lower Court. Where the Appellant?s complaint pertains to wrongful admission or rejection of evidence, such an appellant would not require leave of Court to appeal the decision as such a decision is not considered as an interlocutory decision but part and parcel of the main trial. The settled position of law is that a decision made by a trial Court on

8

wrongful admission or wrongful rejection of evidence is part and parcel of the main trial and not an interlocutory decision in the real sense of the word that requires leave of Court to appeal, unless a special case has been made in respect of the issue. See Okobia vs. Ajanya (1998) 6 NWLR (Pt. 534) 348 at 360; Daisi vs. Oloto (2012) LPELR 8561 (CA); Ogige vs. Obiyan (1997) 10 NWLR (Pt. 524) 179.
Thus, a party appealing against the final judgment of the Court is entitled to include as one of the grounds of appeal, a ground or grounds alleging that inadmissible evidence had been admitted during trial or admissible evidence had been rejected without the necessity to seek leave of Court to do so. In Onwe vs. Nwa Oguinya (2001) 1 SC (Pt. 1) 22 wherein Ejiwunmi, JSC, quoted in approval the decision of Muhammad, JSC in Onchi Okobia vs. Mamodu Ajanya & Anr (1998) 6 NWLR (Pt. 554) 348, the Apex Court in restating the position of the law after reviewing some of its earlier decisions emphatically stated thus: –
?A decision made by the trial Court on wrongful admission of evidence or wrongful rejection of evidence is part of the main trial and not an

9

interlocutory decision unless a special case has been made in respect of the issue. Thus a party wishing to appeal against the judgment of the trial Court can file one of the grounds of appeal alleging that inadmissible evidence had been rejected. Both are fundamental as the error might occur a miscarriage of justice.?
Put differently, time does not run out against any party who wishes to appeal a decision of a trial Court concerning an issue of wrongful admission or rejection of evidence in so far as the issue is made a ground of appeal in the main appeal against the final judgment.
In the instant case, the Ruling of the lower Court refusing the Appellants?/Applicants? subpoenaed witnesses from testifying warranting the Appellants?/Applicants? complaint of wrongful rejection of evidence was delivered in the course of the main trial of the petition. It is a decision rendered in the course of proceedings and forms part and parcel of the main trial of the case, thus requires no leave of Court to appeal against. It is sufficient that the Appellants/Applicants have made such a complaint as grounds 1 to 4 of the grounds of

10

appeal in their appeal against the final judgment of the Tribunal. In the light of the foregoing, we consider this application which was made ?abundanti cautelia?, out of abundance of caution, superfluous and unnecessary, the said ruling in respect of which leave and extension of time is being sought being considered in the eyes of the law, as part of the main trial in which final judgment was delivered on 5th August, 2019.
Therefore, contrary to the forceful submission of the Respondents? counsel, this application has not breached the provisions of paragraph 6 of the Election Tribunal and Court Practice Directions, 2011, which provides that the Appellant shall file in the Registry of the Tribunal his notice and grounds of appeal within 21 days from the date of the decision appealed against. This is so because the decision sought to be appealed against forms part of the main trial in respect of which the final judgment was delivered on the 5th August, 2019 and the proposed Notice of Appeal against that final judgment (Exhibit ?A? attached to the Motion) was dated 12th August, 2019.
The cases of Sidi Ali vs. PDP, Bouwe vs. Ejiro ?

11

and Balogun vs. Odumosu (all supra) inter alia, relied upon by the learned Respondents? counsel though remain good law for what they decided, are not applicable to the facts of this application, the law being that each case is decided on its facts and a ratio decidendi cannot be decided outside the facts of the case. See Onyia vs. State (2009) All FWLR (Pt. 450) 625, 640. The Rules of stare decisis would not allow us, as the learned Respondents? counsel have urged us to do, to apply the ratio in those cases across board with little or no regard to the facts upon which they were decided vis-a-vis the facts of the present application. Those cases deal with the issue of time for filing appeals from the decisions of the Election Petition Tribunal to the Court of Appeal as regulated by the provisions of the Electoral Act. For instance in Bouwe vs. Erijo (supra), this Court interpreted the provisions of paragraph 51 of the 1st Schedule to the Electoral Act 2002 and Section 138 of the same Act and held that it lacked jurisdiction to extend time within which the applicant therein could file a Notice of Cross-appeal against the decision of

12

the Election Petition Tribunal. It declined to extend the time. However, the situation here is quite different, for as stated earlier, the Appellants/Applicants herein have not run out of time to appeal the said decision which perforce of law, forms part of the final judgment delivered only on the 5/8/2019. We therefore find it difficult, nay, impossible to push forward and endorse the position espoused by the learned Respondents? counsel same not being supported by the facts of the present application.

It also needs to be emphasized that the current attitude of this Court and indeed the Supreme Court is to discourage, except where necessary, the filing of interlocutory appeals as they tend to prolong and frustrate trials in the trial or 1st instant Courts. On the other hand, what is encouraged is that interlocutory Rulings be appealed along with the appeal against the final judgment, in order to avoid unnecessary delay in the determination of the main petition.
?
On the whole and in conclusion, this application though unnecessary, deserves to be and is accordingly granted. The proposed Notice of Appeal dated 12/8/2019 marked Exhibit

13

?A? attached to the application, is hereby deemed properly filed and served with effect from the 13th August, 2019, the date the motion was filed.
Parties shall bear their respective costs.

AHMAD OLAREWAJU BELGORE, J.C.A.: I had a preview of the Ruling just delivered by my learned brother, AMINA AUDI WAMBAI.

I agree with her reasoning and conclusions that this is an unnecessary application because the Election Tribunals are expected to suspend their ruling on interlocutory issues and incorporate same in their final judgments. I also grant the application as prayed.
Parties shall bear their own costs.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Ruling just delivered by my learned Brother AMINA AUDI WAMBAI, JCA. I am in agreement with his reasoning and conclusions in granting the Application. I abide by the consequential orders made thereto.
?
It is important to state right away that there is a whole world of difference between a decision of Court, which borders on the Wrongful Rejection or Admission of

14

evidence in the course of trial and one which could properly so to speak, be classified as an interlocutory decision for which the leave of Court would be required to be first sought and obtained in order to ground a competent Appeal against the said ruling. How this point of distinction managed to have eluded the erudition of learned Counsel in this matter on both sides of the divide simply beats the imagination of this Court. The fact that the trial Tribunal rejected the Appellants’ request to call a subpoenaed witness to testify in the course of trial, whether rightly or wrongly made does not in any way amount to an interlocutory decision for which the leave of Court would be required under Section 24 of the Court of Appeal Act, before an Appeal can be taken upon the Court’s decision. At best, what the Court’s refusal amounted to is nothing but a clear case of rejection of evidence and once again, whether the trial Tribunal was right or wrong by so doing, at that stage is entirely another issue altogether. The settled position of the law is that a complaint against wrongful rejection or admission of evidence is never regarded as being against the

15

Court’s interlocutory decision. In the case of ONWE vs. OKE (2001) 3 NWLR (PT.700) 406 AT 418 the apex Court per EJIWUNMI, JSC had this to say on the subject;
“Ordinarily, where an Appellant failed to appeal against an interlocutory Order or Ruling, of a trial Court, within the time prescribed by Section 25(2)(a) of the Court of Appeal Act, 1976 he must obtain the leave the Court for his Appeal to be competent. Where on the other hand the competence of the Appeal against the Ruling is concerned with the wrongful rejection of evidence, such an Appellant would not require the leave of Court as the Ruling Appealed against is not regarded as an interlocutory decision. The Appellant may therefore include the ground of Appeal against the Ruling of the trial Court when appealing against the final judgment of the trial Court.”
(Underlined, that of Court for purposes of emphasis)
See also the cases of OKOBIA vs. AJANYA (1998)6 NWLR (PT. 554) 348 AT 360; ALABI vs. ALABI (2008) ALL FWLR (PT. 418) 245 AT 279. In therefore granting this Application, I once again abide by the consequential orders made thereto in the main Ruling.

16

Appearances:

Anayo Ilo, Esq.For Appellant(s)

Chief J. E. Ochidi Esq. with A. A. Ochidi, Esq. for the 1st respondent
Chief S. U. Nwoke Esq. with C. O. Atumeyi, Esq. for the 2nd RespondentsFor Respondent(s)

 

Appearances

Anayo Ilo, Esq.For Appellant

 

AND

Chief J. E. Ochidi Esq. with A. A. Ochidi, Esq. for the 1st respondent
Chief S. U. Nwoke Esq. with C. O. Atumeyi, Esq. for the 2nd RespondentsFor Respondent