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

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

(2019)LCN/13776(CA)

In The Court of Appeal of Nigeria

On Saturday, the 7th day of September, 2019

CA/S/EPT/HR/6/2019

 

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

RATIO

WHETHER OR NOT RULES OF COURT MUST BE OBEYED

It is trite that Rules of Court are not made for fancy or for decoration; they are made and meant to be obeyed since they regulate the Practice and Procedure in the exercise of the Court?s power and discretion. See Nnonye vs. Anyichie (2005) 1 SC (Pt. 11) 96, INEC vs. Association of Senior Civil Servants of Nigeria & Anr (2007) LPELR ? 8882 (CA).
It has also been held that the Rules of Court are to be reckoned with as subsidiary legislation with equal force of law. See Abubakar vs. Nasamu & Ors (2012) 17 NWLR (Pt. 1330) 523; Akanbi vs. Alao (1989) 3 NWLR (Pt. 108) 118.
However, it is settled law that there is no obedience to Rules of procedure in disobedience to attainment of justice. In other words, in the process of adhering to Rules of procedure the essence of justice should not be sacrificed. After all, the Rules of procedure are only handmaids of law to discover justice. Therefore, where strict application of the Rules will result in a technicality to defeat rather than attain the justice of the matter, the rule must bow and the cause of justice should prevail. The Court must get round the Rule to do substantial justice in the matter. See LATEFF ADEGBITE & ANOR vs. AMINU AMOSU (2016) LPELR-40655 (SC). PER WAMBAI, J.C.A.

DEFINITION OF A “SUBPOENA”

It is to be noted that a subpoena is a Court process commanding any person to attend to Court and produce a document or evidence before it. In his explanation of a subpoena, Kekere-Ekun JCA (as he then was) in Omidiran vs. Patricia Etteh (supra) held thus to say: –
?A subpoena is a formal document issued by the Court commanding a person required by a party to a suit to attend the Court at a given date, to give evidence on behalf of the party or bring with him and produce any specified documents required by the party as evidence or for both purposes.? Let me say here that the question thrown up by the scenario in this appeal is not novel. It is a scenario upon which this Court has spoken and it did so eloquently through Ogunbiyi, JCA (as he then was) in the case of Lasun vs. Awoyemi and Kekere-Ekun, JCA (as he then was) in the case of Omidiran vs. Patricia Etteh (Olubunmi) (supra).
Ogunbiyi, JCA (as he then was) in his characteristic manner succinctly held inter alia: –
?It cannot therefore be within the contemplation of the Practice Directions that the respondent should sign a witness statement or deposition on behalf of the Petitioner whose allegations of irregularities were against the said party. In other words, it is not within the expectation of the said Practice Directions that the Petitioner would frontload the statement of the Respondent.? PER WAMBAI, J.C.A.

WHEN A DECISION IS SAID TO BE GIVEN PER INCURIAM

When is a decision said to be given per incuriam?
Generally, a decision is said to have been given per incuriam if it is given in ignorance or forgetful of some statutory provision or some authorities binding on the Court concerned so that some features of the decision or some steps in the reasoning on which it is based is found to be demonstratively wrong. In the words of Karibi Whyte, JSC in African Newspaper vs. FRN (1985) 2 NWLR (Pt. 6) 137 ?a case is decided per incuriam where a statute or rule having effect or other binding authority which would have affected the decision had not been brought to the attention of the Court.?
In Rossek & Ors vs. ACB Ltd & Ors (1993) 8 NWLR (Pt. 312) 382 the Court in adopting the view of cross on precedent in English Law (1961) at page 139 stated: –
?The principle appears to be that a decision can only be said to be per incuriam if it is possible to point to a step in the reasoning and show that it was faulty because of a failure to mention a statute, a rule having statutory effect or an authoritative case which might have made the decision different from what it was.?
In the case of Umaru vs. Aliyu (supra) cited by the learned counsel to the 2nd Respondent, this Court per Owoade, JCA, held: –
?A decision can be said to be given per Incuriam when it was wrongly decided based on the wrong principle of law or the judge or judges were uninformed about the applicable law.? Per Owoade JCA.
For a decision to properly wear the toga of being per incuriam, it must not only have been given in ignorance or forgetfulness of a statutory or other authority, it must be shown that the statute or authority is binding on the Court; that the decision was based on a wrong principle of law or demonstratively shown to be wrongly decided; and that the Judge was unmindful of the applicable law. In the instant case, as earlier demonstrated, the statutory provision, which is Order 3 Rule 3(e)(i) and (ii) of the Federal High Court Rules, is not applicable to what was decided in those cases and therefore not binding on the Court as far as what was decided in those cases is concerned. PER WAMBAI, J.C.A.

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): On the 23/2/2019, the 3rd Respondent herein (the Independent National Electoral Commission ? INEC) conducted the Nationwide National Assembly Elections. In the election for Tangaza/Gudu Federal Constituency of Sokoto State, the 1st Appellant was sponsored by the 2nd Appellant, the PDP, to contest the seat of member into the Federal House of Representatives for the constituency. The 2nd Respondent, the A.P.C, sponsored the 1st Respondent to contest the same seat. At the conclusion of the election, the 3rd Respondent on the 25/2/2019, returned the 1st Respondent as the winner of the election having scored a total votes of 27, 220 higher than the 26, 047 polled by the 1st Appellant.

?The Appellants who were unhappy with the return of the 1st Respondent, entreated the trial Tribunal (which shall interchangeable be called the lower Court) vide an election petition filed on 16/03/2019, challenging the return of the 1st Respondent on the grounds set out at paragraph 9 of the petition, inter alia; that the 1st Respondent was at the time of the election not qualified to contest the

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election; that the 1st Respondent was not duly elected by a majority of lawful votes at the election; and that the 1st petitioner was the candidate who scored the highest number of lawful votes cast at the election and ought to have been declared the winner and so returned. Consequently, they sought from the trial Tribunal among other reliefs, a determination that the 1st Respondent was not qualified to contest the election as the candidate of the 2nd Respondent (the APC); that the election of the 1st Respondent is invalid on ground of non-compliance with the provisions of the Electoral Act 2010 (as amended) and INEC Regulations and Guidelines for the conduct of the 2019 General Elections; that the return of the 1st Respondent is a nullity; that the 1st petitioner is entitled to be returned by the 3rd and 5th Respondents as having been duly elected to the office/membership of House of Representatives for Tangaza/Gudu Federal Constituency of Sokoto State.

?Pleadings accompanied with the necessary processes were filed and exchanged. After the pre-hearing conference, the matter went to trial. The Appellants called seven (7) witnesses including the 1st

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Appellant who testified as PW7. They tendered in evidence, several exhibits. None of the Respondents called any witness. At the conclusion of trial, parties filed and exchanged their written addresses. In a 72-page unanimous judgment delivered on 5/8/2019 the lower Court dismissed the Appellants? petition in its entirety. That dismissal of the petition gave rise to this appeal. The Notice of Appeal which was prepared and dated 12/8/2019, was by an order of this Court made on 20/8/2019, deemed properly filed and served on 13/8/2019. It contains 12 grounds of appeal.

In the Appellant?s brief of argument settled by Anayo Ilo, Esq., and filed on the 23/08/2019, the Appellants submitted 4 issues for determination, from the 12 grounds of appeal, namely: –
Issue I: Will a tribunal which prevented subpoenaed witnesses from giving evidence, having issued subpoena duces tecum et ad testificandum on such competent and compellable witnesses at the instance of party to the proceeding, be said to have given the party fair hearing in the proceeding? (Distilled from grounds 1, 2, 3, and 4 of the Notice of Appeal)
Issue II: Can the evaluation of

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evidence and the holding of a tribunal therefrom, that a party failed to demonstrate documents during trial be fairly and properly made in law when such party was prevented from giving evidence through his/her witnesses? (Distilled from grounds 6 and 10 of the Notice of Appeal)
Issue III: Will it be correct in law to hold that failure to use Smart Card Reader (SCR) for the conduct of 2019 General Elections in the Federal Republic of Nigeria cannot invalidate an election, until the use of the SCR is backed or legislated upon by the National Assembly? (Distilled from ground 8 of the Notice of Appeal)
Issue IV: Can a tribunal be said to have undertaken proper evaluation of evidence before it when it selectively restricted its findings of law and facts to some parts of the petition without the consideration of all the pertinent issues raised by the Petition? (Distilled from grounds 5, 7, 9, 11 and 12 of the Notice of Appeal)

On the part of the 1st Respondent whose brief of argument filed on 26/8/2019 was settled by Chief J. E. Ochidi, Esq., 3 issues were nominated for determination, to wit: –
ISSUE ONE
Whether the tribunal is correct in

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law when it held in its judgment that in the absence of a deposition, a subpoenaed witness cannot give oral evidence on oath before the tribunal.
ISSUE TWO
Whether the tribunal is correct in law when it held in its judgment that the appellants failed to prove by credible evidence that the 1st respondent was not duly elected by majority of lawful votes cast at the said election.
ISSUE THREE
Whether the tribunal is correct in law when it held in its judgment that the appellants failed to prove that the election of the 1st respondent is invalid by reason of corrupt practices or non-compliance with the Provisions of the Election Act, 2010 (as amended).

Chief Steve Nwoke who settled the 2nd Respondent?s brief of argument filed on 30/8/2019 also raised therein 3 issues worthy of consideration in the just determination of this appeal. The issues are: –
ISSUE (a)
Whether the tribunal below was right when it held that the appellant subpoenaed witnesses could not give oral evidence before the tribunal without a written deposition on oath? Grounds 1, 2, 3 and 4.
ISSUE (b)
Whether the tribunal was right in law to have

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held that the appellant failed to prove that the 1st respondent was not duly elected by a majority of lawful votes cast at the election? Grounds 6, 9, 10, 11 and 12.
ISSUE (c)
Whether the appellant proved before the tribunal that the election of the 1st respondent was invalid by reason of corrupt practices and substantial non-compliance with the provisions of the Electoral Act, 2010 (as amended)? Grounds 5, 7 and 8.

On the part of the 3rd ? 16th Respondents whose brief of argument was settled by Oladipo Tolani, Esq., and filed on 28/8/2019, four issues were distilled for determination, viz: –
1. Was the Lower Court right in refusing the Appellants witnesses subpoenaed to give evidence from testifying without first filing their written statement on oaths? (Distilled from grounds 1, 2, 3 & 4 of the notice of appeal).
2. Whether the Lower Court was right when it held that ground (iii) of the Appellants petition was incompetent and accordingly struck same out? (Distilled from ground 5 of the notice of appeal).
3. Whether the law places an obligation on the Respondents to call witnesses in support of their defence where there

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are caches of evidence on record that supports their defence? (Distilled from ground 9 of the notice of appeal).
4. Whether from the quality of evidence presented before the Lower Court, the Lower Court was right to have dismissed the petition of the Appellants for lacking in merit? (Grounds 6, 7, 8, 70, 77, and 72)

On the issues calling for determination in this appeal, it is apt to observe that the 2nd issue formulated by the 3rd to 16th Respondents who have not cross-appealed from ground 5 of the grounds of appeal deemed abandoned by the Appellants is incompetent.
It is the law that a respondent in an appeal is at liberty either to adopt the issues formulated by the appellant for determination or formulate his own issues from the grounds of appeal provided that a Respondent who has not cross-appealed cannot formulate an issue from an abandoned ground of appeal from which the appellant has not distilled any issue. See FRN vs. UMEH & ANR (2019) LPELR 46801 (SC).
The 3rd to 16th Respondents having not filed a Notice of Cross-appeal have no business to formulate any issue from ground 5 of the grounds of appeal which the Appellants have

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abandoned. It follows that issue 2 formulated by the 3rd to 16th Respondents cannot revive ground 5 abandoned by the Appellants. An appellant may file 100 grounds of appeal but only the grounds or combination of grounds from which issues are formulated are live for argument by counsel and consideration by the Court. All other grounds abandoned or deemed abandoned by the Appellants remain groundless and are incapable of donating an issue for determination by a Respondent who has not cross-appealed. Such abandoned grounds are liable to be struck out and or discountenanced.
Accordingly issue No. 2 formulated by the 3rd to 16th Respondents and argument thereon are discountenanced and struck out. See Amaefuna vs. Okoli (2014) LPELR 23755 (CA).

The 3rd to 16th Respondents? 2nd issue for determination now being discountenanced, the other issues formulated by the 1st, 2nd and 3rd to 16th Respondents in essence mirror from the other side of the coin, the four issues formulated by the Appellants? counsel. I shall determine this appeal on 3 issues as recast below, to wit: –
(1) Whether the Appellants? right to fair hearing was violated

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when the lower Court held that Appellants? subpoenaed witnesses could not give oral evidence without written deposition on Oath.
(2) Having regards to issue No. 1 above; whether the lower Court was right to have held that the Appellants failed to prove that the 1st Respondent was not elected by majority of lawful votes cast at the election.
(3) Whether the lower Court was right when it held that failure to use Smart Card reader did not invalidate the election.

ISSUE NO. 1:
In arguing this issue which questions the correctness, the justice and fairness of the trial Tribunal in disallowing the Appellants? subpoenaed witnesses from testifying on ground that they did not file written depositions, it was submitted for the Appellants that the requirement of Paragraphs 41(3), (5) and (6) of the 1st Schedule to the Electoral Act and the Practice Directions that written statements on Oath of witnesses be filed along with the petition cannot override and impede the provisions of the Evidence Act, 2011 which is the substantive law on the matter, citing in support the cases of ANPP vs. INEC (No. 2) (2010) 13 NWLR (Pt. 1212) 456, 512;

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ANPP vs. INEC (2010) 13 NWLR (Pt. 1212) 549 at 588 ? 589.

It was contended that barring collusion or illegality it cannot be envisaged that a witness will depose or adopt a witness statement on Oath in proof of his adversary; (the petitioner), stressing that the law does not command impossibilities (Nwachukwu vs. The State (2004) 17 NWLR (Pt. 902) 262 at 274), as the Court is enjoined to ensure that justice is not defeated by technical rules as decided in Michael Okaroh vs. The State (1988) 3 NWLR (Pt. 81) 214 at 220.

To this extent, learned counsel took a different position from that taken by the Tribunal on the application of the provisions of Order 3 Rule 3(ii) of the Federal High Court 2009 which the Tribunal held requires such subpoenaed witnesses to file written depositions on Oath. To illustrate and strengthen the Appellants position and render the Tribunal?s position untenable, the cases of Omidiran vs. Patricia Olubunmi & Ors (2010) LPELR 9160 (CA) and Lasun vs. Awoyemi (supra) were re-echoed as binding precedent to this Court to follow. He particularly drew our attention to the proclamation of Ogunbiyi, JCA (as he then was) in

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Yusuf Suleiman Lasun vs. Leo Adejare Awoyemi & Ors (2009) 16 NWLR (Pt. 1168) 513 at 548 ? 549 (CA) wherein this Court decreed that such subpoenaed witnesses are by order of Court bound to give oral evidence without filing any written deposition, the subpoena being a command directed at the witness to testify.

We were reminded of the principle of law that Rules of Court made as guides to discover justice though must be obeyed, the Court is enjoined not to, in the process of strict adherence thereto, be beclouded from discharging its sacred duty of doing substantial justice rather than thrive on technicalities. The cases of Abubakar vs. Yar?adua (2008) 1 SC (Pt. 11) 77 at 122 lines 1 ? 7, and Oni vs. Fayemi (2008) 8 NWLR (Pt. 1089) 400 at 443 paras C ? E and 451 ? 452, G ? B were cited in support.

Learned counsel maintained that the refusal to allow the Appellants? subpoenaed witnesses to give their evidence amounts to the Tribunal assisting their adversaries in suppressing relevant evidence and is tantamount to a denial of the Appellants? fundamental right to fair hearing.

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In contending that such a trial in which the Appellants? subpoenaed witnesses were prevented from testifying cannot be said to have been fair to the Appellants, learned counsel called in aid once again the case of Lasun vs. Awoyemi (supra) wherein Ogunbiyi, JCA (as he then was) explained the meaning of fair hearing in a judicial trial and when an impartial observer can say that a hearing has been fair.

On the effect of a trial conducted in breach of fair hearing, our attention was again drawn to the case of Omidiran vs. Patricia Ette Olubunmi (supra) where Kekere ? Ekun, JCA (as he then was) reiterated that the breach of the right to fair hearing vitiates the entire proceedings rendering same null and void and of no effect. On the same restatement of the law per Onnoghen, JSC (as he then was), the case of Chitra Knitting and Weaving Manufacturing Co. Ltd vs. G.O. Akingbade (2016) LPELR 40437 (SC) was also relied upon.

?We were invited and urged to resolve this fundamental issue of denial of fair hearing in favour of the Appellants and on this score allow the appeal and remit the petition to a freshly constituted Election Petition Panel for hearing de novo.

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On his part submitting per contra, Chief J. E. Ochidi on behalf of the 1st Respondent recalled the objection he had taken on 17/6/2019 predicated upon the provision of Paragraphs 41(3) and 4(5)(b) of the 1st Schedule to the Electoral Act, to the Appellants? application to call one Aminu Bello Tukur, (the collation officer for Mongaho ward) to testify on Oath. He submitted that the Tribunal is right in upholding the objection and holding that the attempt to call the said witness to testify without a deposition violates the provisions of Paragraph 4(5) of the 1st Schedule to the Electoral Act and Order 3 Rule 1(ii) of the Federal High Court made applicable to the tribunal pursuant to Paragraph 54 of the 1st Schedule to the Electoral Act, 2010 (as amended).

It was submitted in argument that by Paragraph 5(i)(b) of the 1st Schedule to the Electoral Act, an election petition presented for filing before the Tribunal must be accompanied by written statement on Oath of witnesses intended to be called by parties and to that extent, Paragraph 41(3) of the said 1st Schedule to the Electoral Act (now simply called the ?the Act?) which

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makes no distinction between a subpoenaed witness and a voluntary witness, prohibits oral examination of witnesses. Premised on this, Chief Ochidi argued that there being no specific provision in the 1st Schedule whether subpoenaed witnesses must be rooted in a sworn deposition, the Tribunal pursuant to of Paragraph 54 of the same 1st Schedule is permitted and right to apply Order 3 Rule 3(1)(e)(i) of the Federal High Court Rules which mandates such subpoenaed witnesses to file their statements on Oath before testifying. The Appellants having failed to file written depositions of the subpoenaed witnesses, we were urged to affirm the Tribunal?s Ruling and resolve the issue in favour of the 1st Respondent.

?Chief S. U. Nwoke, Esq., for the 2nd Respondent in chorus with Chief J. E. Ochidi for the 1st Respondent on this issue, also recalled the objection taken by the 2nd Respondent at the Tribunal on the 17/6/2019, to the Appellants? application to call one of the subpoenaed witnesses to give oral evidence without a written deposition on Oath. Like Chief Ochidi for the 1st Respondent, Chief Nwoke also applauded the Tribunal?s Ruling refusing

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the application which he has urged us to affirm.

He submitted that a party has no right to conduct his case the way he wants without regard to the procedure provided by the Rules; and where the statute has provided a particular method by which an action is to be done, a litigant who wishes to enjoy the benefit of the statute must comply with the particular method or Rules as no other method or procedure will be accepted. He cited the case of Okparanta v. Elechi (2007) All FWLR (Pt. 358) 119. It was thus contended that Paragraph 4(5) of the Practice Directions and Paragraph 41(3) of the 1st Schedule to the Electoral Act must be complied with before a witness can testify at the Tribunal.

In addition to replicating the argument on behalf of the 1st Respondent on the applicability of Order 3 Rule 3(e)(1) and (2) of the Federal High Court Rules to the Tribunal by virtue of Paragraph 54 of the 1st Schedule and that no distinction is drawn between a subpoenaed witness and a voluntary witness, learned counsel proceeded further to argue that the case of Lasun vs. Awoyemi (supra) relied upon by the Appellants was decided ?per incuriam? having

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ignored or not considered the said provisions of Order 3 Rule 3(e)(1) and (2) of the Federal High Court Civil Procedure Rules and is thus not an authority that a subpoenaed witness needs not file a written deposition on Oath before testifying. To that extent, he concluded that this Court is not bound to follow its former decision in Lasun vs. Awoyemi (supra) reached ?per incuriam? having been given in ignorance of the relevant Rules of the Federal High Court on the issue it decided. He cited the cases of Okonji Ngwo & Ors vs. Raphel Monye & Ors LPELR (SC) 235/1967; Umaru vs. Aliyu (2010) All FWLR (Pt. 508) 321, 357.

On the Appellants? contention that the Tribunal?s refusal to allow the witnesses testify amounts to a denial of fair hearing, it was submitted in rebuttal that the Appellants insistence on a wrong procedure even when their attention was drawn to it leading to the Tribunal?s bench ruling refusing the application, is a self-inflicted injury for which they cannot be heard to complain, citing in support the case of News Watch Communication Ltd vs. Alhaji Aliyu Ibrahim Attah (2006) 12 NWLR (Pt. 993) (without

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citing the page).

Moreover, fair hearing, learned counsel submitted, is not a prerogative of one party alone but envisages that both parties are given the opportunity to present their respective cases and ensuring that one party does not take undue advantage of the other, contending that had the Tribunal allowed the witnesses to testify without deposition, the Respondents would have been taken by surprise and the Tribunal would have abdicated its duty of ensuring even handed justice; Again reliance was placed on News Watch Communication Ltd vs. Alhaji Aliyu Ibrahim Attah (supra) at page 115 para D ? E, in urging us to resolve the issue in favour of the 2nd Respondent.

With regards to the 3rd to the 16th Respondents? brief, it is also in tandem with and almost a replica of the briefs of the 1st and 2nd Respondents. I need not embark on a rehearsal or summation of their brief except the part not captured or adequately captured by the previous briefs already adumbrated upon in this judgment.

On the purport of Paragraph 54 of the 1st Schedule to the Act which counsel argued the Appellants failed to appreciate, learned counsel, Oladipo

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Tolani Esq., pointed out that had the Appellants taken the pain to understand its purport, they would have taken steps, after the ruling refusing their application, to utilize the provisions of the law rather than the decision to close their case, a choice which they cannot impute on the Tribunal.

Explaining further the requirement for the Tribunal to fall back on Paragraph 54 of the 1st Schedule to invoke Order 3 Rule 3(i) and (ii) relating to the procedure of summoning witnesses by means of a subpoena since no such provision is made in the 1st Schedule or the Practice Directions, he opined that the subpoena which is meant to compel the subpoenaed witness to testify, ought in the first instance, to compel the said subpoenaed witness to make and deliver his deposition on Oath before being accorded the opportunity to testify, as refusal to first deliver the deposition constitutes an offence of contempt, but that the Appellants failed to serve any such form on the subpoenaed witnesses.

On the cases of Lasun vs. Awoyemi and Omidiran vs. Patricia Etteh (all supra) which learned counsel reiterated were decided without bringing to bear the provisions of

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Order 3 Rule 3 of the Federal High Court Rules via Paragraph 54 of the 1st Schedule which the trial Tribunal considered, counsel also took the same position with the 2nd Respondent that they were decided per incuriam and submitted further that in so far as the 2006 Electoral and the 2007 Practice Directions Regimes under which the cases were decided are not the same with the Rules and Practice Directions governing the 2019 elections and the cases never considered the provisions of Order 3 Rule 3 of the Federal High Court Rules 2009, the electoral regime of 2007 cannot willy-nilly be forced on the 2019 elections, the two situations being different. For this, he cited the case of Adegoke Motors Ltd vs. Adesanya (1989) 3 NWLR (Pt. 109) 250 at 266 ? B ? F.

Predicated on the foregoing, it was submitted that in view of the provisions of Order 3 Rule 3 of the Federal High Court (Civil Procedure) Rules, 2009 and Paragraph 41(1) and (3) of the 1st Schedule to the Electoral Act, the issuance of the subpoena by the Tribunal was not a sine qua non for the subpoenaed witnesses to be sworn to testify without their deposition on Oath, thus, the Appellants

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cannot hide under the canopy of the subpoena to circumvent the provisions of the Act.

For the same non-compliance by the Appellants it was the contention of learned Tolani Esq., that the Appellants have no right to complain of lack of fair hearing, the question here not being whether injustice has been done because of the alleged breach of fair hearing but whether the party entitled to be heard before a decision is reached has in fact been afforded an opportunity of being heard. He insisted that the Appellants were afforded that opportunity having been given 14 days to present their case unimpaired but they elected to invite additional witnesses without complying with the Rules and decided without any prompting by the Tribunal or anyone, to close their case. They cannot therefore resort to the technical rule of fair hearing, citing the case of Yusuf vs. Union Bank Ltd (1996) 6 NWLR (Pt. 4) 632. Finally, counsel urged that the issue be resolved against the Appellants and in favour of the 3rd to 16th Respondents.

?I have given a careful consideration to the submissions of all counsel and it is clear to me that the question to be answered in this issue

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is the correctness of the decision of the lower Court preventing the Appellants? subpoenaed witnesses from testifying on ground of non-filing of witness depositions on Oath. The Respondents in unison applaud the decision hinging their support for it on the provisions of Paragraphs 41(3), 4(5)(i)(b) and 54 of the 1st Schedule to the Act, and Order 3 Rule 3(1)(e)(ii) of the Federal High Court (Civil Procedure) Rules (2009). The Appellants on the other hand abhor the decision, and have beseeched us to nullify same. In so praying, they took refuge in the decisions of Lasun vs. Awoyemi (supra), Omidiran vs. Patricia Etteh (supra) which decisions the Respondents contend, were reached per incuriam. This defines the battle lines on the issue.
It is pertinent, to first and foremost look, albeit briefly, at the relevant provisions of the Electoral Act and the Federal High Court Rules at play on this issue, to get to the soul of the issue in contention. Paragraph 4(5)(i) of the 1st Schedule provides: –
?The election petition shall be accompanied by;
(a) xxxxx;
(b) Written statements on Oath of witnesses; and
(c) xxxxx?

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Sub  paragraph (6) of Paragraph 45 goes further to provide:
?A petition which fails to comply with Sub-paragraph (1) of this paragraph shall not be accepted for filing by the secretary.?
See Ekpenetu vs. Ofegobi (2012) 16 NWLR (Pt. 1323) 276; Oraekwe vs. Chukwuka (2012) 1 NWLR (Pt. 1280) 160.
Paragraph 41(3) of the same 1st Schedule prohibits oral examination of witnesses except to adopt their written depositions and tender in evidence all disputed documents or exhibits stated in the deposition. It provides:
?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 all disputed documents or other exhibits referred to in the deposition.?
The combined effect of these paragraphs, no doubt is that no witness shall testify before the Tribunal except one whose written deposition has been frontloaded with the petition, the purport of these provisions being that the evidence at trial shall only be by adoption of written depositions which shall be followed by cross-examination and re-examination, if any. These are the general

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provisions relating to voluntary witnesses whom the petitioner intends to call to testify before the Tribunal.
In the instant case, in the course of trial, the Appellants applied to the Tribunal to issue ?subpoena duces tecum ad testificandum? on some staff of the 3rd Respondent, specifically:
(i) The resident Electoral Commissioner, Sokoto State;
(ii) The collation officer, Mogonho ward; and
(iii) The collation officer, Tangaza ward.
The tribunal obliged the request and the officers were subpoenaed (see pages 236 and 237 of the record).
After fielding the witnesses whose written depositions accompanied the petition the 1st Appellant inclusive, the Appellants on the 17/6/2019 applied to the Tribunal to allow one of the subpoenaed witnesses, Aminu Bello Tukur (the collation officer of Mogonho ward), to testify on Oath. He and the other subpoenaed witnesses filed no written deposition before the Tribunal. This led to the objection and the subsequent ruling refusing the application. It is not in contention that the written depositions of the subpoenaed witness did not accompany the petition at presentation as required by

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Paragraph 4(5)(i)(b) of the 1st Schedule nor was the deposition on Oath of the Aminu Bello Tukur before the Tribunal as at the time of the application.
It is trite that Rules of Court are not made for fancy or for decoration; they are made and meant to be obeyed since they regulate the Practice and Procedure in the exercise of the Court?s power and discretion. See Nnonye vs. Anyichie (2005) 1 SC (Pt. 11) 96, INEC vs. Association of Senior Civil Servants of Nigeria & Anr (2007) LPELR ? 8882 (CA).
It has also been held that the Rules of Court are to be reckoned with as subsidiary legislation with equal force of law. See Abubakar vs. Nasamu & Ors (2012) 17 NWLR (Pt. 1330) 523; Akanbi vs. Alao (1989) 3 NWLR (Pt. 108) 118.
However, it is settled law that there is no obedience to Rules of procedure in disobedience to attainment of justice. In other words, in the process of adhering to Rules of procedure the essence of justice should not be sacrificed. After all, the Rules of procedure are only handmaids of law to discover justice. Therefore, where strict application of the Rules will result in a technicality to defeat rather than

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attain the justice of the matter, the rule must bow and the cause of justice should prevail. The Court must get round the Rule to do substantial justice in the matter. See LATEFF ADEGBITE & ANOR vs. AMINU AMOSU (2016) LPELR-40655 (SC). In the words of Pats Acholomu, JSC in Duke vs. Akpabuyo Local Govt. (2005) 19 NWLR (Pt. 959) 130 (the Rules of Court) are to be used to discover justice and not to choke, throttle or asphyxiate justice.
The paramount question here is whether these provisions are meant to be complied with by a subpoenaed witness who is a Respondent to an election petition. In other words, is it within the contemplation of the 1st Schedule that a Respondent in an election petition should sign a deposition or written statement on behalf of the petitioner whose allegation in the petition he is defending?
?It seems to me that it will amount to a legal fallacy, logically and practically incongruent, barring any collusion or illegality, to expect a Respondent in an election petition to sign a written deposition in favour of the petitioner, or to require a petitioner to frontload as part of his petition, depositions of his opponent as one or

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more of the witnesses to be called at the trial in proof of his petition.
It is my firm belief that the Electoral Act would not have contemplated a scenario where a petitioner would be expected, nay, required, to frontload the deposition of his adversary or that the adversary will willingly without any collusion or illegality, depose to a statement in favour of the petitioner. Since the Respondents are mandated by law to defend the petition.
?It cannot be within the estimation of the law, in a normal situation, that a respondent will actively take deliberate steps or actions in support or proof of his opponent?s case. I believe strongly, that it cannot be the intendment of the 1st Schedule or the Practice Direction that a Respondent in an election petition will voluntarily make a deposition on Oath in favour of the petitioner for frontloading or to require a Respondent at any stage of the trial to voluntarily make any such deposition in favour of the petitioner. This is more so that statutorily, a Respondent in an election petition is mandated to defend and not to support the petition. The law commands that which is reasonable and possible and

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not what is illogical or naturally impossible. Thus, the legal maxim ?lex non cogit ad impossibilia? ?the law does not command the impossible? applies here. It follows that the Respondent can only testify for a petitioner if compelled to do so by a subpoena. This is the import of the Appellant?s application for the issuance of ?subpoena duces tecum ad testificandum? to compel, through the instrumentality of the subpoena, the subpoenaed witnesses to testify on their behalf, a function which the subpoena is intended to perform.
It is to be noted that a subpoena is a Court process commanding any person to attend to Court and produce a document or evidence before it. In his explanation of a subpoena, Kekere-Ekun JCA (as he then was) in Omidiran vs. Patricia Etteh (supra) held thus to say: –
?A subpoena is a formal document issued by the Court commanding a person required by a party to a suit to attend the Court at a given date, to give evidence on behalf of the party or bring with him and produce any specified documents required by the party as evidence or for both purposes.?

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Let me say here that the question thrown up by the scenario in this appeal is not novel. It is a scenario upon which this Court has spoken and it did so eloquently through Ogunbiyi, JCA (as he then was) in the case of Lasun vs. Awoyemi and Kekere-Ekun, JCA (as he then was) in the case of Omidiran vs. Patricia Etteh (Olubunmi) (supra).
Ogunbiyi, JCA (as he then was) in his characteristic manner succinctly held inter alia: –
?It cannot therefore be within the contemplation of the Practice Directions that the respondent should sign a witness statement or deposition on behalf of the Petitioner whose allegations of irregularities were against the said party. In other words, it is not within the expectation of the said Practice Directions that the Petitioner would frontload the statement of the Respondent.?
In respect of such a Respondent subpoenaed by the Tribunal at the instance of the Tribunal, his lordship continued:
?By mere fact of the subpoena having been issued, the witness is bound to be sworn on oath to testify and be cross-examined. The authority in the case of Onyemelukwe v. Alberto [2001] All FWLR (Part 83) 2166 at 6184 is relevant…?

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See also the case of Muhammad Bashir Olatunji Ibrahim vs. Olatunji Adende Ogunleye & Ors (2010) LPELR-4556(CA) per Adumein JCA.
It follows that the provisions of Paragraph 4(5)(i)(b) and 41(3) of the 1st Schedule of the requirement of frontloading witnesses? deposition on Oath only contemplates willing and voluntarily witnesses who elect out of their volition to testify for the petitioner. They do not and cannot be contemplated or intended to apply to witnesses who are compelled by an order of Court through a subpoena duces tecum ad testificandum, to testify before the Tribunal, as it is not logical to expect such subpoenaed witnesses who are Respondents to the petition to prepare witness deposition to aid the case of his adversary. Any such expectation will go beyond the realm of any reasonable logic.
The Respondents, have vehemently argued in support of the stand of the lower Court (Tribunal) that in the absence of any specific provision in the Rules directly on the matter whether the evidence of a subpoenaed witness must be rooted in a sworn deposition, the proper course of action is to fall back, as the Tribunal

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did, to the provisions of Paragraph 54 of the 1st Schedule to apply the Federal High Court Rules which has made a provision for the situation in its Order 3 Rule 3(1)(e)(ii).
Admittedly at the moment, there is no specific provision in the 1st Schedule for summoning a witness to the Court by means of subpoena duces tecum ad testificandum and how such subpoenaed witness is to testify before the Court. Paragraph 54 of the 1st Schedule allows the Tribunal to have recourse to the practice and procedure of the Federal High Court with necessary modifications to render them applicable.
The said paragraph 54 provides:
?Subject to the express provisions of this Act, the practice and procedure of the tribunal or the Court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of this act, as if the petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary

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civil action.?
Order 3 Rule 3(1)(e)(ii) stipulates:
?The witnesses who require subpoena or summons shall at the instance of the party calling them be served with civil form 1 (a) before the filing of the statements of such witnesses.?
It is clear in the wordings of Paragraph 54 above reproduced, that the application of the Federal High Court (Civil Procedure) Rules to an election petition where no specific provision has been made in the Electoral Rules or Practice Directions, is subject to such modifications as are necessary to render them applicable having regards to the sui genesis nature of election petition which stands it out distinctly in a class of its own, from the normal civil causes and matters. Where applicable to an election petition, the Rules must be modified to reflect the peculiar nature of election petition more so where a blanket application would negate or run counter to the very reason for taking it out in the first instance, from the general Civil Procedure Rules.
?In the instant case, I do not envisage that Order 3 Rule 3(1)(e)(ii) contemplates a witness requiring a subpoena before testifying to be a

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Respondent or defendant to an action. In my humble view Order 3 Rule 3(e)(ii) applies where the witness to be summoned or subpoenaed is not a party to the proceedings and would require a summons or subpoena to testify at the instance of the party calling him. It is that subpoenaed witness who is required, at the instance of the party calling him, to be served with form 1(a) before filing his statement on Oath. That subpoenaed witness cannot be a respondent in the action. It follows that the subpoenaed witness envisaged by Order 3 Rule 3 required to file a witness statement is quite distinct and different from a subpoenaed respondent in an election petition. Therefore, Order 3 Rule 3 of the Federal High Court Rules heavily relied upon by the Respondents and the Tribunal is not an authority that a subpoenaed witness in an election petition who happens to be a Respondent or an agent of the Respondent to the petition is required to file a deposition on Oath or a statement before he can testify. His authority to testify before the Court is the subpoena issued by the Court which enables and compels him to testify on behalf of the petitioner at whose instance he has

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been commanded either to produce documents or to testify or to do both. The mere issuance of the subpoena on the witness binds him to be sworn on Oath to testify and be cross-examined. See Lasun vs. Awoyemi (supra), Onyemelukwe vs. L.D. Alberto (2001) FWLR (Pt. 83) 2166, 6184, Omidiran vs. Patricia Etteh Olubunmi (supra).
Simply stated, the provisions of Order 3 Rule 3 of the Federal High Court Rules does not contemplate a Respondent to an election petition subpoenaed at the instance of the petitioner to file a written deposition on oath before he can testify. The said Order 3 Rules 3 caters for a scenario different from the scenario in an election petition where the witness subpoenaed at the instance of the petitioner happens to be a respondent to the petition. The provisions has no meeting point with the situation on an election petition where a Respondent is commanded by a subpoena duces tecum ad testificandum to testify. The two situations are dissimilar. If I may say so, they are like two strange bed fellows who have no meeting point. Those provisions do not apply and cannot be applied or be relied upon to contend that a subpoenaed respondent in an

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election petition requires a written deposition on oath to testify.
I say no more except to wrap it up on this, that in an election petition a Respondent subpoenaed as a witness by the Court at the instance of the petitioner needs not make any deposition on oath to testify. His authority and command to do so is the subpoena.
This leads to the plank of Respondents contention that the cases of Lasun vs. Awoyemi (supra) and Omidiran vs. Patricia Etteh (supra) relied upon by the Appellants were decided per incuriam because the Court ignored or did not apply the provisions of Order 3 Rule 3(e)(i)-(ii) of the Federal High Court (Civil Procedure) Rules.
When is a decision said to be given per incuriam?
Generally, a decision is said to have been given per incuriam if it is given in ignorance or forgetful of some statutory provision or some authorities binding on the Court concerned so that some features of the decision or some steps in the reasoning on which it is based is found to be demonstratively wrong. In the words of Karibi Whyte, JSC in African Newspaper vs. FRN (1985) 2 NWLR (Pt. 6) 137 ?a case is decided per incuriam where a statute or

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rule having effect or other binding authority which would have affected the decision had not been brought to the attention of the Court.?
In Rossek & Ors vs. ACB Ltd & Ors (1993) 8 NWLR (Pt. 312) 382 the Court in adopting the view of cross on precedent in English Law (1961) at page 139 stated: –
?The principle appears to be that a decision can only be said to be per incuriam if it is possible to point to a step in the reasoning and show that it was faulty because of a failure to mention a statute, a rule having statutory effect or an authoritative case which might have made the decision different from what it was.?
In the case of Umaru vs. Aliyu (supra) cited by the learned counsel to the 2nd Respondent, this Court per Owoade, JCA, held: –
?A decision can be said to be given per Incuriam when it was wrongly decided based on the wrong principle of law or the judge or judges were uninformed about the applicable law.? Per Owoade JCA.
For a decision to properly wear the toga of being per incuriam, it must not only have been given in ignorance or forgetfulness of a statutory or other authority, it must

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be shown that the statute or authority is binding on the Court; that the decision was based on a wrong principle of law or demonstratively shown to be wrongly decided; and that the Judge was unmindful of the applicable law. In the instant case, as earlier demonstrated, the statutory provision, which is Order 3 Rule 3(e)(i) and (ii) of the Federal High Court Rules, is not applicable to what was decided in those cases and therefore not binding on the Court as far as what was decided in those cases is concerned.
Furthermore, were the said provision alleged to have been ignored considered by the Court, it would not have affected the reasoning and the conclusion in the decisions. As explained by Karibi Whyte, JSC in the case of African Newspaper vs. FRN (supra), a case is decided per incuriam where a statute or rule having statutory effect or other binding authority which would have affected the decision had not been brought to the attention of the Court. Conversely as in the case at hand, where the statute or other authority not brought to the attention of the Court is not binding on the Court and would have not affected the decision, the decision cannot be

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said to be reached per incuriam even where it is later found to be wrong. Order 3 Rule 3 of the Federal High Court Rules even if considered in Lasun vs. Awoyemi (supra) and Omidiran vs. Olubunmi (supra) would not have in any way affected the decisions.
Secondly, those decisions have not been shown to have been decided on wrong principle of law or wrongly decided. At the moment, no decision of the Apex Court or even a later decision of this Court has been drawn to our attention that has shown or declared these decisions to have been wrongly decided.
What is more, the erudite reasoning in these decisions have not been punctured and I dare say, cannot be deflated by the authority of Order 3 Rule 3 of the Federal High Court Rules alleged not to have been considered. Rather, this Court has consistently maintained the position taken by these decisions. For instance, in the case of Ibrahim vs. Ogunleye & Ors (supra) Adumein JCA maintaining the same position held thus:
?I agree with the counsel for the appellant that Subpoena is a very important writ of Court or Tribunal. ?.. A subpoena is therefore, a serious order by a Court or

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Tribunal, disobedience to which is sanctionable or punishable. It is trite law that a Court order, unless and until set aside or vacated, must be obeyed. In the instant case, the lower tribunal, having issued the subpoena commanding the Resident Electoral Commissioner, Osun State to appear before it to give evidence and produce certain documents, had a corresponding duty to enforce it or ensure its enforcement. It was erroneous and illogical for the Tribunal to have refused the subpoenaed REC or his representative to be sworn and to give evidence on behalf of the petitioner/appellant. Reliance by the Tribunal on the Provisions of the Practice Directions, in refusing the subpoenaed witness to be sworn, has no legal basis.?
Similarly, Abba Aji, JCA (as he then was) in the case of Ibe vs. Ibekwe & Ors (2012) LPELR 1535 held inter alia: –
?Paragraph 41(1) of the 1st Schedule is made subject to any statutory provision which include the Evidence Act, 2011. DW3 was commanded to come to Court under subpoena Exhibit 17 to give evidence and to produce documents and the Evidence Act allowed him to testify. A person summoned with subpoena ad

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testificandum is one summoned to testify and will therefore be required to go into the witness box and testify on Oath or affirmation.?
Only recently on the 26/08/2019 the Port Harcourt Division of this Court in the Appeal No. CA/PH/EPT/393/2019 between Ibinabo Sonny Amachree & 1 Or vs. INEC & 2 Ors, when confronted with the same issue and the same argument as herein canvassed, after reviewing all the arguments canvassed for and against, quoted in approval the decisions in Lasun vs. Awoyemi (supra), Ibrahim vs. Ogunleye & Ors (supra) as well as Ibe vs. Ibekwe & Ors (supra) and held as follows:
“Importantly, by making an application for a subpoena to issue to the witness, it shows that the Appellants who are desirous of proving their cases or an aspect of it from the subpoenaed witness cannot ordinarily bring such witness in Court on their own; hence the application for subpoena.?
He went further to say: –
?I believe, neither the Electoral Act nor the 1st Schedule thereto readily contemplated this scenario. It is also my belief that the aim of the Electoral Act is not to make the onerous task of proving the

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petition on the petitioner any heavier, by insisting that the Petitioner shall frontload the written statements of all witness including adversaries that are on subpoena.?
It follows that on the facts and on the law the said decisions of Lasun vs. Awoyemi (supra) and Omidiran vs. Patricia Etteh (supra) remain the law on the issue and were not decided per in-curiam.
On whether the refusal to allow the subpoenaed witnesses testify constitutes a denial of their fair hearing, the term fair hearing connotes a trial conducted according to all dictates of legal principles and rules formulated to ensure that justice is done to all parties to the cause or matter. See Atejioje vs. Ayeni (1988) 6 NWLR (Pt. 532) 129. It connotes that all parties in an action be given opportunity to present their case and defend the case against them. See Garba vs. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550 at 618, Awoniyi vs. Reg. Trustees of A.M.O.R.C (2006) 6 SC 103.
The strong pillars upon which the concept of fair hearing is held are the true pillars of natural justice. They are ?audi alterem partem? (hear the other side that is, one must be

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heard in his own defence or even to present his case) and ?nemo judex in causa sua? (no one may be a Judge in his own case). See Ikomi vs. State (1986) 5 SC 313. There cannot be fair hearing to a party in a trial where one of the pillars is absent or crushed. A party whose subpoenaed competent and compellable witnesses have been prevented from testifying by the same self Tribunal which issued the subpoena, on a technical or rather a misconceived interpretation of the law, cannot be said to have received fair hearing. Fair hearing it must be emphasized, is not only a constitutional right but also a right ordained by the Almighty, the absence of which vitiates a trial. My lord Ogunbiyi JCA (as he then was) in Lasun vs. Awoyemi did not mince words that a refusal to allow subpoenaed witnesses testify amounts to a denial of fair hearing. In his words:
?With the Tribunal having issued subpoena duces tecum et ad testificandum on a competent and compellable witness but prevented him from giving evidence, such tribunal cannot be said to have obeyed the hallowed principle of natural justice, equity and good conscience. The case of the appellant. …

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has not received fair treatment in the circumstance.?
Similarly, Adumein JCA in Ibrahim vs. Ogunleye held that such refusal amounts to Miscarriage of Justice when he held inter alia: –
?However, having regard to the facts and circumstances of this case, the Tribunal unfairly trivialized and slaughtered justice on the alter of legal technicalities by refusing a subpoenaed official of the Independent National Electoral Commission (INEC) to be sworn and, therefore, to give testimony in the election petition…. would occasion a miscarriage of justice.?
Therefore, in the instant case, we are on the facts and on the law, inclined to return a negative answer to the question posed by the Appellant in his issue No. 1, which, it will be recalled is:
?Will a tribunal which prevented subpoenaed witnesses from giving evidence, having issued subpoena duces tecum et ad testificandum on such competent and compellable witnesses at the instance of party to the proceeding, be said to have given the party fair hearing in the proceeding
It was the same answer that was returned by Ogunbiyi, JCA (as he then was) in

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Lasun vs.  Awoyemi (supra) when his lordship clearly stated:-
?With the Tribunal having issued subpoena duces tecum et ad testificandum on a competent and compellable witness but prevented him from giving evidence, such tribunal cannot be said to have obeyed the hallowed principle of natural justice, equity and good conscience… The case of the appellant….. has not received fair treatment in the circumstance.?
The law is trite that any proceedings conducted in breach of the right to fair hearing is a nullity and liable to be set aside. See Kotoye vs. CBN (1989) 1 NWLR (Pt. 96) 419.
This position of law was reiterated per Kekere ? Ekun, JCA (as he then was) in Omidiran vs. Olubunmi (supra) thus:-
?The position of the law is that the breach of the right to fair hearing vitiates the entire proceedings, rendering same null and void and of no effect, no matter how well conducted. See: Ceekay Traders Ltd v. General Motors Co. Ltd [1992] 2 NWLR (Part 222) 132; Adigun vs. A.G., Oyo State [1997] NWLR (Part 453) 678; Salu vs. Egeibon [1994] 6 NWLR (Part 248) 23 at 44.?
It follows that all said and done, this first issue is

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resolved in favour of the Appellants which renders a consideration of the remaining two issues otiose.

In the circumstance we allow the appeal on this score and make the following Orders:
(1) The decision of the National and State Houses of Assembly Election Petition Tribunal in Petition No. EPT/SKT/HR/04/ 2019 is set aside.
(2) The said election Petition No. EPT/SKT/HR/04/2019 is hereby remitted to the second National and State Houses Election Petition Tribunal, Sokoto, other than the one constituted by Hon. Justice P. A. Akhihiero (Chairman), Hon. Justice A. N. Yakubu (Member I) and His Worship S. T. Bello (Member II) for hearing de Novo.
(3) The petition shall be heard and determined expeditiously within the remaining life span of the petition.
(4) No cost is awarded.

AHMAD OLAREWAJU BELGORE, J.C.A.: I had a preview of the judgment just delivered by my learned brother, AMINA AUDI WAMBAI, JCA.
I agree entirely with his reasoning and conclusion which I adopt as mine and I have nothing to add thereto.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the

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opportunity of reading the draft of the judgment just delivered by my learned Brother AMINA AUDI WAMBAI, JCA. I am in agreement with his reasoning and conclusions in allowing the Appeal. I abide by the consequential orders made thereto. The peculiar facts of the case, however, clearly justify this Court?s decision on the matter and it may just be appropriate to relate these facts here no matter how briefly it is done.

?The Appellants herein as Petitioners at the Tribunal, vide a Petition dated and filed on the 16-3-2019 challenged the election of 1st Respondent who was sponsored by and contested on the platform of the 2nd Respondent as candidate to the Seat of Member, House of Representatives for Tangaza/Gudu Federal Constituency of Sokoto State, at an election conducted by the 3rd Respondent on the 23-2-2019. After the conclusion of pre-hearing and issuance of pre-hearing report, trial commenced on the 23-5-2019, with the Petitioners opening their case. The Petitioners called Seven (7) witnesses, including the 1st Petitioner and thereafter applied to be subpoenaed, three (3) witnesses namely; the INEC Resident Electoral Commissioner, Sokoto State;

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the Collation Officer for Mogonho Ward and the Collation officer, Tangaza Ward to testify on their behalf.

Consequent upon the said application and payment of requisites fees, the Tribunal issued a subpoena dated 15-6-2019 and duly signed by the Chairman of the Tribunal summoning the three (3) INEC Officers to appear before it on 17-6-2019. On the said 17-6-2019 when the subpoenaed witnesses appeared before the Tribunal to give evidence, objections to the witnesses giving oral evidence without witness depositions on oath was made by all Counsel to Respondents, except 3rd-16th Respondents. After the arguments of Counsel in support and against the Tribunal in a well-considered bench ruling, sustained the objection and held that; ?in the absence of a deposition, the witnesses cannot give evidence on Oath in this petition.?
It is important to note, going forward, that the issue raised by decision of the Tribunal has been one which is clearly governed by Paragraphs 41(3), (5) & (6) of the 1st Schedule to the Electoral Act, 2010 and the relevant Practice Directions on the issue, which deal with the filing of witness depositions on behalf of

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witnesses expected to testify before the Tribunal.
There are also quite a number of judicial pronouncements on the issue, to the effect that the said Paragraphs 41(3), (5) & (6) of the 1st Schedule to the Electoral Act, 2010 and the relevant Practice Directions on the issue cannot override the provisions of the Evidence Act, 2011 (as Amended) and also that the Practice Directions, on the issue do not have the effect of eviscerating the right of witnesses to testify who have been brought to Court to give oral evidence pursuant to the issuance of subpoena by the Tribunal.
See the case of YUSUF SULAIMAN LASUN vs. LEO ADEJARE AWOYEMI & ORS [2009] 16 NWLR (PT. 1168) 513 at 548 – 549(CA) where this Court per OGUNBIYI, JCA (as he then was) had this to say on the subject:
?It cannot therefore be within the contemplation of the provision of the 1st Schedule to the Electoral Act, 2010 (as amended) which is the Practice Directions in election petitions that the respondent should sign a witness statement or deposition on behalf of the Petitioner whose allegations of irregularities were against the said party. In other words, it is not within

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the expectation of the said Practice Directions that the Petitioner would frontload the statement of the Respondent. By mere fact of the subpoena having been issued, the witness is bound to be sworn on oath to testify and be cross-examined. The authority in the case of Onyejekwe v. Albert [2001] All FWLR (Part 83) 2166 at 6184 is relevant…
?… The general provision of the Practice Direction on frontloading of witnesses’ deposition on oath only contemplates willing and voluntary witness and not one who had to be compelled by an order of the Court to testify by way of a subpoena. It is not logical therefore that a party should prepare witness deposition for his adversary who is a respondent against the petition. Expecting that such witness would sign and adopt the deposition is beyond human reasoning …?
See also the case of ALHAJA AYO OMIDIRAN vs. ETTEH PATRICIA OLUBUNMI & 343 ORS [2010] LPELR- 9160(CA), where this Court also per KEKERE-EKUN, JCA (as he then was) had this to say on the subject;
?A subpoena is a Court process commanding any person to attend to Court and produce a document or evidence before it. This

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principle was well enunciated by their Lordships of the apex Court in the case of Muhammed Buhari & Anor v. Chief Olusegun Aremu Obasanjo [2005] I NWLR (Part 941) 1 wherein same was interpreted as an order or writ of Court, which may be for the person to attend the Court and testify only, in other words called subpoena ad testificandum or for him to produce document in his possession or control referred to as subpoena duces tecum. A subpoena simplicita could also require the person to do both. See the case of Ambassador Odu v. Duke & Ors [2006] 1 NWLR (Part 961) 375 at 391 a decision of Court of Appeal citing Fidelis Nwadialor: Civil Procedure in Nigeria, 2nd Edition, 2000 at 652. The effect of subpoena ad testificandum is that there is an obligation on the person subpoenaed to give evidence.?
Arising from the foregoing, what seemed rather surprising, is that the Tribunal, having ?commanded?, (in the words of the noble Lord, KEKERE-EKUN, JSC in OMIDIRAN’S case – Supra), a person to attend the Court at a given date, to give evidence on behalf of the party or bring with him and produce any specified documents required by the party

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as evidence, will make a somersault upon the attendance of the witness, to prevent the said witness whose attendance was secured by its command from giving evidence in the Petition, due to reason of failure to file a deposition of witness’ statement on oath.
It will be noted that for the Tribunal to have turned around to insist on the production of deposed witness statement on oath from subpoenaed witnesses is not to have rightly insisted on the compliance to the Practice Directions on the issue providing for the front loading of witness statements along with the petition, but to have by so doing sought to ?choke, throttle or asphyxiate justice? as they (Practice Direction) are not a sine qua non in the just determination of a case and therefore not immutable?. See the cases of DUKE vs. AKPABUYO LOCAL GOVERNMENT [2005]19 NWLR (PT. 959) 130 AT 142-143 H-A cited with approval by SANKEY, JCA in ONI vs. FAYEMI [2008] 8 NWLR (1089) 400 AT 442 – 443 H-B.
The Tribunal, having refused the subpoenaed witnesses from testifying, having initially issued subpoenas for their testimony, cannot be said to have conducted the proceedings before it

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impartially and fairly and this Court is therefore in agreement with the learned Appellants? Counsel when he said that the conduct of the Tribunal by so doing eviscerated the Right to fair hearing of the Appellants. For this and a fuller reason proffered by my Learned Brother in the leading Judgment, I too will allow the Appeal, and abide with all consequential Orders made thereto.

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Appearances:

Anayo Ilo, Esq.For Appellant(s)

Chief J. E. Ochidi, Esq. for the 1st Respondent.
Chief Steve Nwoke, Esq. for the 2nd Respondent.
Oladipo Tolani, Esq. for the 3rd to 16th RespondentsFor Respondent(s)

 

Appearances

Anayo Ilo, Esq.For Appellant

 

AND

Chief J. E. Ochidi, Esq. for the 1st Respondent.
Chief Steve Nwoke, Esq. for the 2nd Respondent.
Oladipo Tolani, Esq. for the 3rd to 16th RespondentsFor Respondent