MR. WILLIAM BALLANTYNE v. HON. ESSIEN EKPENYONG AYI & ORS
In The Court of Appeal of Nigeria
On Friday, the 19th day of August, 2011
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
MR. WILLIAM BALLANTYNE Appellant(s)
1. HON. ESSIEN EKPENYONG AYI
2. THE RESIDENT ELECTORAL COMMISSIONER & CROSS RIVER STATE (MR. MIKE IGINI)
3. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. THE PEOPLES DEMOCRATIC PARTY Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A (Delivering the Leading Judgment): This is an appeal against the decision of the National And state Assembly Election petition Tribunal sitting at calabar, cross River state contained in the Ruling delivered on 4th July, 2011.
The appellant, the 1st respondent and some other persons contested the election into the House of Representatives seat for calabar south, Akpabuyo and Bakassi Federal constituency organized by the 3rd respondent and held on 9th April, 2011. The 3rd respondent declared the 1st respondent as the winner of the election and the appellant who felt dissatisfied, challenged the result so declared by filing an Election Petition at the National And State House of Assembly Election Tribunal, Holden at calabar on 28th April, 2011.
The erection petition numbered as EPT/CR/NA/2/2011 was fired on 28th April, 2011 and duly served on the respondents, and in reaction thereto, the 1st respondent fired his Reply on 25th May 2011; the 4th respondent’s Reply was fired on 30th May 2011, while the 2nd and 3rd respondents filed their joint Reply on 17th June, 2011 but their applications for Tribunal’s leave for enlargement of time to file the Reply was refused. The petitioner (who is now called the appellant) filed Reply to the 1st respondent’s Reply on 27th May, 2011 and fired Reply to the 2nd and 3rd respondents, Reply on 20th June, 2011.
The 1st respondent had filed a motion on Notice on 5th June, 2011 for the following reliefs:
“(a) An Order striking out the witness statements of (1) ABC, DEF, JKL, MNO, TQR, STU, VWX, YZA, ABA, ABD, ABE, ABF, ABG, ABH, ABJ & ABK attached to the petition and listed in the petition.
(b) AN ORDER striking out paragraphs 20, 21, 40, 44, 42, 43, 45 & 46 of the petition.
(c) AN ORDER striking out witness statement of the petitioner.
The application was brought upon the following grounds:
“1. That the witnesses statements of all the witness save the petition are incompetent in that they failed to meet the mandatory provisions of section 90 (b) of the Evidence Act.
2. The witness statement of the petitioner is incompetent in that it failed to the provisions of section 90 (b) Evidence Act.
3. That paragraph 4 (5) a & b of the Schedule to the Electoral Act makes it mandatory to meet it’s provisions.
4. That the paragraphs being challenged in the petition raised matters or issues outside the prescribed jurisdictional powers of the Honourable Tribunal.
5. That the Federal High Court Calabar decision on these issues cannot be revisited by the Honourable Tribunal.”
In support of the motion on notice, the 1st respondent deposed to affidavit of 6 paragraphs, the salient paragraphs of which are 3, 4 and 5 as follows:
“3. That I have gone through the petition and noticed that only one witness has his name written, all other witnesses statement on oath did not state full name, trade or profession.
4. That the petitioner is also complaining against matters that occurred before the election was held on the 9th April, 2011.
6. That the petition itself is not being challenged in this motion but certain processes and paragraphs of the petition.
See pages 183-198 of the record of appeal for the motion on notice, the affidavit of Honourable (Pastor) Essien Ekpenyong Ayi, in its support and the written address of the applicant.
The appellant filed a Counter affidavit and a written address in opposing the motion (pages 199-209) while the (applicant) 1st respondent filed a Further Affidavit and his Reply to the appellant’s address.
The Tribunal in its ruling on 4th July,2011 (pages 367-37I of the record) held that the depositions of the appellant and all his witnesses did not comply with the provisions of Section 90 (b) of the Evidence Act and struck them out, consequent upon which the whole of the petition was struck out for noncompliance with paragraph 4 (7) of the 1st Schedule to the Electoral Act, 2010.
The Tribunal placed reliance on Buhari vs. INEC (2oog) 19 NWLR (pt.1120) 246 at 511 per Onnonghen JSC.
The appellant (as petitioner) was aggrieved by the decision of the Tribunal. He filed Notice of Appeal on 4th July 2011 containing three grounds of appeal’ In respect of the appeal, the appellant filed the Appellant’s Brief of Argument on 29th July 2011. The 1st respondent’s Brief settled by Joe Agi Esq, SAN was filed on 5th August 2011 while the 2nd and 3d Respondents, Brief of Argument signed by Uzo Onwukwe Esq was filed on 8th August 2011. At the hearing of the appeal on 9th August 2011 all counsel for the parties (except 4th respondent) were present and they adopted and relied on their respective briefs of argument. Mr. William Ballantyne who handled the appeal himself being a legal practitioner urged this court to allow the appeal while Joe Agi, SAN for 1st respondent and Onwukwe Esq. for 2nd and 3’d respondents urged the court to dismiss the appeal. The Senior Advocate of Nigeria for 1st Respondent hinted that he had abandoned the Notice of Objection and the Respondents Notice in his brief of argument.
The issues for determination in this appeal as formulated by the appellant at page 2 of his brief of argument are the following:
“(a) Whether having regard to the timelines constitutionally provided for the disposal of election petitions, the striking out of the appellant’s petition by the trial tribunal at the stage it did without a full trial was not unconstitutional and a breach of the Electoral Act 2010 (as amended).
(b) Whether the trial tribunal was right when it based her decision to strike out the petition summarily on Section 90 (b) of the Evidence Act at the pre-Hearing Stage relying on a dissenting opinion of one of the justices of the Supreme Court.
(c) Whether the appellant was given fair hearing by the Tribunal.”
The 1st respondent adopted the above issues while the 2nd and 3rd respondents stated the issues as follows at page 2 of their brief:
“2.1 WHETHER THE TRIBUNAL WAS RIGHT TO STRIKE OUT THE PETITION OF THE APPELLANT AS AT THE TIME IT DID.
2.2 WHETHER THE TRIAL TRIBUNAL WAS RIGHT TO STRIKE OUT THE PETITION ON THE GROUND THAT ALL THE WITNESS STATEMENTS ON OATH ATTACHED TO THE PETITION FAILED TO COMPLY WITH SECTION 90 (B) OF THE EVIDENCE ACT.
2.3 WHETHER OR NOT THE APPELLANT WAS GIVEN FAIR HEARING.
The appellant and the other counsel argued the three issued in their brief seriatim.
on the first issue, the appellant argued that by paragraph 12 (5) of the 1st schedule to the Electoral Act 2010 (as amended) the respondents were required to state their objection in their reply to the petition and file the objection with such Reply. He argued that paragraph 12 (5) of the 1st Schedule to the Electoral Act, 2010 (as amended) has prescribed the manner and the stage at which a respondent can challenge the competence of a petition. He argued further that while the 2nd and 3rd respondents failed to file any reply the 1st respondent did not in his reply raise the grounds upon which he applied to have the petition struck out, and therefore did not comply with the mandatory provisions of paragraph 12 (5) of the first Schedule to the Act in bringing the application to strike out the petition and a fortiori the tribunal lacked jurisdiction to hear the application at the stage of the proceedings it was taken.
The learned counsel submitted that the idea of raising unnecessary jurisdictional objection to obtain victory in a case has been condemned by the supreme court in okoro vs. Egbuoh (2006) 16 NWLR (pt. 1101) 1, and cited also Kamir vs. INEC (2010) 1 NWLR (pt. 1174) 143. He submitted that once a statute provides for, or lays down the procedure for doing something, there should not be any other method of doing that same thing, and the 1st respondent having faired to comply with paragraph 12 (5) of the first schedule to the Act, the Tribunal was wrong to hear the application at the prehearing stage, and the striking out of the petition at pre-hearing stage without a full trial was unconstitutional and a breach of the Act.
on the second issue, the appellant argued that the Tribunal dismissed the petition based on the dissenting view expressed by onnonghen, JSC in Buhari vs. INEC (supra), but that this decision of the Tribunal did not reflect what actually happened in that Buhari’s case wherein the issue as to the validity of the oath administered on the witnesses by the counsel to the appellant in view of the provisions of section 83 of the Evidence Act and section 19 of or contrary to the Notary Public act.
According to the learned counsel, one of the issues in this appeal is the applicability of section 90 (b) of Evidence Act. He said the emphasis in section 90 of Evidence Act is the person before whom affidavits are taken which in the instant case is the secretary of the Tribunal whose act in the public or official capacity must be presumed to have been done in line with the formal requisites for its validity under Sections 4 (1) and (2) and 150 of the Evidence Act.
The counsel argued further that in Buhari’s case (supra) it was onnonghen JSC who in his dissenting judgment introduced section 90 of Evidence Act, and as a minority decision, it did not have the force of law not being the ratio decidendi as a result of which it has no binding effect under the doctrine of stare decisis. He cited Nigerian Arab Bank Ltd. vs. Barri Engineering Ltd. (199s) 8 NWLR (pt. 4r3) 257; ogboru vs. Uduaghan (2011) 2 NWLR (pt. 1232) 597; onyia vs. state (2009) All FWLR (pt.450) 625 (2008) 18 NWLR (pt. 1118) 124; Adesokan vs. Adetunji (1994) 5 NWLR (Pt. 346) 540 to further explain the doctrine of stare decisis, and submitted that the Supreme court did not in Buhari’s case pronounce on the applicability of section 90 (b) of Evidence Act to the witness deposition on oath in the election petition.
The learned counsel cited udeagha vs. omegara (2010) 11 NWLR (Pt.1204) 195 for the distinction between statements of witnesses which are adopted during oral examination and mere affidavit evidence. He submitted that the Tribunal showed total misunderstanding of the difference between affidavit evidence used in regular applications in court proceedings and written statements on oath which are usually adopted in open court and the witness will be cross examined. He cited Aregbesola vs. oyinlora (2011) 9 NWLR (pt.1253) 565.
The learned counsel submitted that, citing Abubakar vs. Yar’Adua (2008) 1 sc (Pt.11) 17 that Practice Directions have the force of law in the same way as Rules of court because Rules of Court include practice Directions, but Practice Directions will have no force of law if it is in conflict with the constitution or the statute that enables them. He argued that the present Election Tribunal and court Practice Directions issued by the president of court of Appeal in exercise of powers conferred on him by sections 243,285 of the constitution of the Federal Republic of Nigeria, 1999 and section 145 of Electoral Act 2010 (as amended) came into operation on 1st April, 2011 and covers the instant case. He argued that the Practice Direction provided for the use of alphabets to represent witnesses in order to protect their identity by providing in paragraph 2 that the requirement of paragraph 4 (5) of the 1st Schedule to the Electoral Act 2010 (as amended) shall apply mutatis mutandis to a petitioner’s reply and list of witnesses there shall be deemed complied with where the identity of the witnesses are represented by initials, alphabets or a combination of both. This provision according to learned counsel was complied in his petition s0 as to protect his witnesses as recognized by the present practice which Directions is not in conflict with the Constitution.
on the third issue the appellant argued that the constitutional provision of fair hearing requires that the parties be heard before a judgment is passed against them and that fair hearing is anchored on twin pillars one of which is the audi alteram partem meaning that you should hear the other party. contended that He the Tribunal made far reaching pronouncement in respect of the 1st respondent’s application without the benefit of hearing from the other side. He contended further that in the application the relief of dismissal or striking out of the petition was not sought, but it was the Tribunal itself that suo motu proceeded to canvass argument for the 1st respondent by saying it failed to find that the petitioner had fired a Reply with five additional witnesses whose depositions complied substantially with the provisions of the Evidence Act, and in respect of which the parties did not address the Tribunal before the petition was struck out suo motu, even when the applicant (1st respondent said he did not challenge the petition itself. He cited Longe vs. FBN (2010) 42 NSCQR 518; The State vs. Oladimeyi (2003) 14 NWLR (Pt. 839) 57. He argued that the Tribunal did not hear the parties over the issue of expediency which it raised suo motu and upon which it based the decision to strike out the petition and submitted that the practice of raising issues suo motu at judgment stage was condemned in Agbiti vs. Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175.
Counsel concluded this issue by contending that the appellants constitutionally guaranteed right of fair hearing was breached by the Tribunal.
He then urged this court to exercise its powers under Section 15 of the Court of Act and assume jurisdiction to re-hear and determine the petition as a court of first instance for the reason that if it is remitted to the Tribunal, the petition may not be heard within the period of 180 days granted under Section 285 (6) of the Constitution of the Federal Republic of Nigeria (as amended).
Joe Agi Esq. Senior Advocate of Nigeria included a Respondents’ Notice and a Preliminary Objection in his brief, but at the hearing of the appeal he urged court to discountenance both processes. There was no objection or opposition to this request. The same is therefore promptly granted at this stage and the processes are struck out accordingly.
In his argument on issue one, the Senior Advocate of Nigeria stated that it is the appellant’s stand that it is inappropriate to hear or entertain an application challenging the jurisdiction of the tribunal before the hearing of the petition as was done by the Tribunal; with appellant relying on paragraph 12 (5) of the 1st schedule to the Electoral Act 2010. He said paragraph 11 (7) (d) and paragraph 53 (5) of the 1st Schedule to the Electoral Act 2010 permit the Tribunal to hear all objections at the pre-hearing stage and not at the trial of the petition. He argued that placing the interpretation suggested or advanced by the appellant on the provision of paragraph 12 (5) means that there is a conflict between that paragraph, paragraph 18 (7) (d) and 53 (5) and in which instance the last of them must prevail. He likened paragraph 12 (5) of 1st schedule to the Electoral Act 2010 (as amended) to order 23 Rule 2 of Lagos State High Court Rules 1994. He submitted on the authority of Elebanjo vs. Dawodu (2006) 15 NWLR (Pt.1001) 76 that the rules of Court cannot dictate when and how an issue of jurisdiction can be raised. He refers to section 140 (4) of the Act and stated that the decision of the Tribunal was right in the circumstances as the law does not forbid the hearing and determination of the competence of a petition at the pre-hearing stage.
on the second issue, the senior Advocate of Nigeria submitted that the only point of dissent in the judgment in Buhari’s case bordered on the effect of non serialization of ballot papers, while the court spoke with one voice on the need for witnesses statement on oath to comply with the Evidence Act.
Further on this issue the Senior counsel contended that the practice Direction in the Buhari’s case allowed the usage of alphabets in describing witnesses statement on oath before it was subsequently declared void by the Supreme Court for being inconsistent with the Evidence Act, but in the present situation the practice direction does not state that written statement on oath of witnesses will be complied with by the usage of alphabets or combination of alphabets, He referred court to:
(a) Election Tribunal and court practice Directions 2007.
(b) Election Tribunal And Court Practice Amendment Directions 2007.
(c) Election Tribunal court practice Directions 2011.
(d) Electoral Act 2010 (as amended) 1st schedule paragraph 4 (5).
The Senior Advocate of Nigeria contended that a community reading of the above statutes shows that the Election Tribunal or Court practice Directions 2011 has not made reference to written statements on oath of witnesses which is now in the Act as paragraph 4 (5) (b) of the 1st Schedule to the Act while the Practice Direction is silent as to whether alphabets or a combination thereof should be used to identify the witnesses. He submitted that the practice
Direction having not said that the written statement on oath shall describe the deponent by using alphabets, the appellant is estopped from reading into the law what is not therein contained. He cited okereke vs. yar’dua (200g) 12 NWLR (Pt.1110) 95 to submit that where a legislation has laid down a procedure for doing a thing there should be no other mode of doing the thing. On the decision in Udeagha vs. omegara (supra) relied upon by the appellant the senior counsel said the decision therein was reached per incuriam since the Supreme Court had in Buhari vs. INEC (supra) held that depositions are affidavit, and the Court of Appeal cannot overrule the Supreme Court.
He contended that the written statements on oath that accompanied the petition filed in this case did not comply with the provisions of Section 90 (b) of Evidence Act, and the acceptance of that petition for filing by the Secretary cannot turn it into a valid one. He referred to the unreported judgment of this Court in All Nigerian Peoples Party vs. INEC (Appeal No. CA/C/NAEA/215/2007) delivered on 31st March, 2009; Nkeiruke vs. Joseph (2009) 5 NWLR.
He submitted that Section 150 of Evidence Act cannot heal the pain caused by the failure to meet the statutory provisions of Section 90 (b) of the Evidence Act and that the submission of the appellant in reliance on Section 150 of the Evidence Act is an admission that his process fell short of the requirement of the law.
He submitted that this being an election matter, it is sui generis as stated in Ajadi vs. Ajibola (2004)16 NWLR (Pt. 898) 91, while a breach of a mandatory provision of a statute cannot be waived or even condoned. The Senior Advocate of Nigeria concluded that the effect of the breach of the mandatory provision of a statute is that the depositions are invalid and the Tribunal was right in striking out all the written statements on oath accompanying the petition for failure to meet the mandatory provisions of Section 90 (b) of Evidence Act.
On the third issue, the Senior Counsel submitted that the decision of the Tribunal to strike out the petition cannot be faulted legally since the petition was not accompanied by written statements on oath as required by paragraph 4 (5) of the 1st Schedule to the Act. The meaning is that there was no petition recognized by the law.
He described the order striking out the petition as a consequential order or relief which the law allows the Tribunal to make having found that no valid petition existed. The order was necessary to give effect to the decision of the Tribunal, in support of which he cited Amaechi vs. INEC (2008) 5 NWLR (Pt.1080) 227; Atolagbe vs. Shoroun (1985) 1 NWLR (Pt. 2) 360; Liman vs. Mohammed (1999) 9 NWLR (Pt. 617) 116; .Ogunyade vs. Oshunkeye (2007) 15 NWLR (Pt.1057) 218.
He contended that this is not a case of denial of fair hearing to any party and urged court to resolve this issue against the appellant.
Learned counsel for 2nd and 3rd respondents, Uzo Onwukwe Esq. submitted on the first issue in his brief that the Tribunal was very correct to have struck out the petition for failure to comply with the provision of Section 90 (b) and paragraph 4 (5) (b) of the 1st Schedule to the Electoral Act, 2010 as the statements on oath attached therewith were invalid for non-compliance with Section 90 (b) of Evidence Act. He submitted also that since the petition was not accompanied with competent witness statement on oath, it did not disclose a reasonable cause of action and was rightly struck out by the Tribunal at that stage, citing ojukwu vs. yar’dua (2009) t2 NWLR (pt, 1154) 50. He submitted also that paragraph 53 (1) and (2) of 1st schedule to the Electoral Act permits the Tribunal to hear and determine application challenging the competence of a petition at the interlocutory stage and that paragraph being a latter and specific provision must override paragraph 12 (5) which is earlier and general. He submitted that a petition which does not disclose a reasonable cause of action should not be allowed to proceed to hearing, citing ojukwu vs. Yar’Adua (supra) at pages 114 and 115.
The learned counsel submitted that a petition which is not accompanied with valid statements on oath of witnesses does not meet the mandatory requirement of paragraph 4 (5) (b) of 1st schedule to the Electoral Act 2010 is incompetent and the Tribunal does not possess the jurisdiction to entertain the petition. He submitted that the issue of jurisdiction is threshold but very radical and fundamental that it can be raised at any stage and should be determined first whenever it is raised as the proceedings without jurisdiction will go to no issue citing, Madukoru vs. Nkemdilim (1962) 2 SCNL 341; Labaran vs. Okoye (1995) 4 NWLR (pt. 3g9) 303; Deliuch vs. S.B.N Ltd. (2003) 12 NWLR (Pt. 842) 1.
still on the issue of jurisdiction, the learned counsel submitted that it is an issue that can be raised at any time before the conclusion of pleadings or even suo motu by a court, citing sure vs. Kabir (2011) 2 NWLR (pt. 1232) 504; senate President vs. Nzeribe (2004) 9 NWLR (pt. 878) 251. The parties as argued by counsel can not by their agreement donate jurisdiction to the court or tribunal.
He contended that the Tribunal was right to determine the issue of competence of the petition in this case at the preliminary stage without going into trial.
On the second issue, the learned counsel submitted that the Tribunal was right to have struck out the petition for the reason that the witnesses statement on oath were invalid for non-compliance with Section 90 (b) of Evidence Act.
It was the contention of learned counsel that the basis for the finding of the Tribunal that the appellant’s written statements on oath of witnesses did not comply with section 90 (b) of Evidence Act was not in the case of Buhari vs. INEC (2008) 19 NWLR (Pt. 120) 246. The Tribunal did not require that Supreme Court decision to read the statements in contention and discover the deficiency therein. He argued that it was a consensus of both the majority and dissenting judgments in Buhari’s case that the witness statements therein were incompetent having not met the requirements of provisions of the Evidence Act and Notary Public Act, which means that a court can declare a witness statement on oath attached to a petition incompetent where it fails to comply with the law.
The learned counsel contended also that the argument of the appellant that the acceptance of the petition by the secretary of the Tribunal validated the petition is erroneous. He submitted that the mere acceptance of the petition for filing by the secretary did not cure the statutory or formal deficiencies in the affidavit attached to the petition. He argued that the case of Udeagha vs. Omegara (2010) 11 NWLR (Pt. 120) 195 and relied upon by the appellant to distinguish between written statement on oath and affidavit was cited out of con,
On the third issue the learned counsel submitted that the Tribunal would still have struck out the petition by way of an order consequential to the finding that the remnant of the petition could no longer be sustainable after striking out all the supporting statements of witnesses on oath thereby rendering the petition worthless and the Tribunal could only have struck it out, citing Nwankwo vs. Yar Adua (2010) 12 NWLR (Pt. 1209) 518.
Counsel argued that the issue raised by appellant, that the Tribunal did not discover the fact that he had filed a Reply with additional witnesses with depositions that substantially complied with Evidence Act and none of the parties addressed on it is not properly before this court and should be discountenanced being a new issue raised for the first time without leave of court, citing. Jov vs. Nam (1999) 4 NWLR (Pt. 623) 538; Trangale Traditional Council vs. Fawu (2001) 17 NWLR (Pt.742) 923.
Counsel’s position on the argument of the appellant that this court can assume jurisdiction over this petition and hear or rehear the same pursuant to Section 15 of Court of Appeal Act is that such a request is asking this court to embark on a legally inconceivable task since the matter has not gone through trial at the Tribunal. He contended that the case was not heard on the merit for there to be evidence to which this court can consider. The power of this court under section 15 of court of Appeal Act according to counsel, is only to re-hear a matter presupposing that there must have been a hearing which is not so in the instant case where the petition was struck out at the pre-hearing session. The learned counsel urged this court to dismiss the appeal.
The appellant filed what he titled as “Rejoinder on points of law” wherein he stated that it was not correct to say that only agents appointed under the Electoral Act can testify for the petitioner. He made reference to paragraph 2 of the Election Tribunal and court practice Directions, 2011.
It is realized that the process of Rejoinder on points of Law was fired by the appellant in reaction or reply to the preliminary objection raised in the 1st Respondents’ Brief and with the withdrawal of that objection, the process or at least that aspect of the argument therein no longer serves any useful purpose.
I had at the earlier part of this judgment set forth inextenso the application of the 1st respondent before the Tribunal and upon which the ruling of 4th July 2011 was delivered at the continued pre-hearing session of the Tribunal. The ruling is on pages 367-371 of the record of appeal, and it shows that the Tribunal refused the second limb of the reliefs sought by the 1st respondent on the ground that the paragraphs of the petition sought to be struck out actually fall within the matters over which the Tribunal can exercise jurisdiction.
The 1st and the 3rd limbs were granted. The Tribunal found that the written statement on oath of appellant and his witnesses ran short” of some requirements of section 90 (b) of the Evidence Act by failing to state the trades/professions of the proposed witnesses. The Tribunal then stated as follows at page 370 of the record of appeal:
“On this issue the Applicant’s counsel referred to the Supreme Court decision in BUHARI v. INEC (2008) 19 NWLR (pt.1120) Pg 246 at 511 where a similar issue arose. In that case Onnoghen JSC stated inter alia:
“In the circumstance I hold the view that the witness deposition of the 4th and 5th respondents are incompetent at they offend the provisions of section 90 (b) and (c) of the Evidence Act and consequently resolve the issue in favour of the appellant.”
In deference to this binding precedence (sic) we hold that the depositions of the petitioner and all his witnesses do not comply with the provisions of section 90(b) of the evidence Act and should be and are therefore struck out.”
I intend to consider and determine this appeal on the basis of the three issues raised by the appellant, adopted by the 1st respondent and argued in their respective briefs of argument. I believe the issues in the 2nd and 3rd respondent’s brief can also be adequately taken care of under the appellant’s issues. I find the appellant’s second issue to cover aspects of his issues one and three and so, I start with that issue number two.
Before I proceed to the consideration of this issue, it occurs to me that there is a noticeable inadvertence in the ruling of the Tribunal where at page 371 of the record it stated as follows:
“paragraph 4 (7) of the 1st schedule to the Electoral Act 2010 requires that every petition shall be accompanied by depositions petitioner’s of the witnesses and sub-paragraph 8 of that paragraph provides that failure comply with the provision of sub-paragraph 7 mentioned shall cause the petition not to be accepted for filing.”
The reference to paragraph 4 (7) and (g) of the 1st schedule to the Electoral Act 2010 (as amended) was with respect, an oversight in view of the provision of section 38 of Electoral (Amendment) Act 2010 which pronounced the two sub-paragraphs (7) and (B) as deleted. The reason for this is quite obvious in that those sub-paragraphs merely repeated the provisions of subparagraphs 4 and 5 of the same paragraph 4 of the schedule to the Electoral Act 2010 (as amended). Reference to these subparagraphs 7 and 8 of paragraph 4 of 1st schedule in the ruling of 4th July 2011 is inappropriate since they had been repealed by the Amendment Act that commenced on 29th December , 2010. I regard this as inadvertence since sub-paragraphs 5 and 6 0f the same paragraph 4 are retained and are still extant with provisions the same as the repealed subparagraphs 7 and 8, and moreso that I am raising this so as to straighten the records since it has not been made an issue in this appeal. on the issue number two, the appellant had argued that the Tribunal relied on a dissenting judgment of onnoghen JSC in the case of Buhari vs. INEC in holding that the written statements on oath that accompanied his petition violated Section 90 (b) of the Evidence Act and struck out the depositions and eventually the petition itself. The learned Senior Advocate for 1st respondent contended on this issue that all the justices in the case of Buhari vs. INEC spoke with one voice on the issues except the serialization of ballot papers.
A calm study and understanding of the case of Buhari vs. INEC which is also reported in (2009) All FWLR (Pt. 459) 419; (2008) 12 SCNJ (pt. 1) 91; was an appeal against the decision of the Court of Appeal sitting as a trial court in a Presidential election petition matter. The appeal was heard by a panel of 7 Justices of the Supreme Court with Idris Leebo Kutigi CJN (now retired) presiding wile Niki Tobi JSC read the lead judgment. The issues raised in the appeal included whether the president of the Court of Appeal had the power to issue Practice Directions and whether the Court was right to have struck depositions of out 18 out of the 19 witnesses for the petitioner. These two issues are among the issues raised in that appeal which are material and relevant to the instant appeal.
The validity of the Practice Directions 2007 issued by the president of Court of Appeal was upheld while the striking out of the statements on oath of the witnesses was also upheld but on the basis that the swearing was not in line with Section 83 of Evidence Act and section 19 of the Notary public Act the oath having been taken before Val. I. Ikeonu, a Notary Public who was also appearing therein as counsel.
Two other issues are still relevant to this appeal. First, and quite deeply connected thereto is the use of alphabets in that case in the written statements on oath of the 4th and 5th respondents therein, At page 396 of the judgment, (the NWLR version), Niki Tobi JSC said:
“There is a more fundamental point and it is that the practice Directions provide for the procedure. The amendment to the practice Directions dated 1Oth May, 2007 in paragraph 1 (ii) allows the use of letters of the alphabet.
As the amendment came into effect on the 3rd April, 2007 it covers the issue here. In the light of the above, the issue is dead.”
The second is the depositions of the witnesses of the appellant’s witnesses that inspected the election materials. The depositions were rejected at page 390 of the judgment on the ground that they did not comply with Section 87 of the Evidence Act.
In otherwords throughout the gamut of the lead judgment and concurring judgments of justices in the majority judgment, the matter of section 90 (b) of Evidence Act was not mentioned. It only arose in the dissenting judgment of His Noble Lordship, onnoghen JSC while analyzing the same written statements on oath of the 4th and 5th respondents.
The doctrine of judicial precedent which is otherwise known as stare decisis is well recognized in our legal system and by that doctrine, a court that is lower in hierarchy must bow down and follow decision of superior courts even where such a decision is obviously wrong having been based upon false premise. This is to guarantee consistency of the decisions of courts. However, what constitutes a binding precedent in a judgment is the ratio decidendi of the case and not every passing word made by the judge or justice otherwise called the obita dictum. see Dairo vs. UBN Plc (2007) All FWLR (pt. 392) 1846.
To dissent is to disagree with the majority and a dissenting judgment does not represent the view of the majority. I believe that the status of a dissenting judgment was well expressed by my learned brother, Nweze JCA, in pharmatech Ind. projects Ltd. vs. Trade Bank (Nig) Plc (200g) A, FWLR (Pt. 495) 1679 at 1711-1712 as follows:
“In his dissenting judgment, the onnoghen JSC herd that letter of the said Ag. Chief Land officer which conveyed the consent of the commissioner was sufficient evidence of the consent of the commissioner to the transactions referred to … The other two justices on the panel did not express any view on this matter. Much as I am persuaded by the position taken by Onnoghen JSC, I am constrained by the remind myself that in appellate proceedings where the judgment of the court is split into plurality and minority positions respectively, what constitutes the judgment of the court is the majority judgment. Hence I am bound to kowtow to the views of the majority as reinforced by the telling conclusions of Muktar JSC. In effect, the judgment of Onnoghen JSC remains what it is, namely, a dissenting judgment… In the circumstance I shall follow the position of the majority which is binding on this court.”
In the instant case the real issue before the Tribunal was that the written statements on oath of the petitioner and his witnesses who were described or represented by initials or alphabets were not competent because the statements were in collision with section 90 (b) or the Evidence Act.
By the provision of paragraph a (5) of the 1st schedule to the Electoral Act, 2010 (as amended), an election petition is to be accompanied by a list of the witnesses that the petitioner intends to call in proof of the petition; written statements on oath of the witnesses as well as copies or list of every document to be relied on at the hearing of the petition. It is where a petitioner fails to comply with sub-paragraph 5 that the secretary is bound not to accept such petition for filing under paragraph 4 (6) thereof, on the face of the petition in the instant case’ the three requirements of paragraph 4 (5) were met or satisfied by the petition of the appellant and that was not the basis for the objection of the 1st respondent.
The case of Buhari vs. INEC (supra) was conducted and determined both at trial and appellate stages under the Electoral Act, 2006, and under the provisions of the Election Tribunal And court practice Directions 2007 as amended by the Election Tribunal And court practice Amendment Directions 2007 issued by the president of the court of Appear pursuant to the enabling provisions of Section 285 (3) of the constitution of the Federal Republic of Nigeria, 1999; Paragraph 50 of the First schedule to the Electoral Act, 2006 as well as other provisions relevant thereto. By the Election Tribunal And court Practice Amendment Directions 2007, sub-paragraphs (a) and (b) (1) of paragraph 1 of Election Tribunal And court practice Direction 2007.were amended by substituting “statement indicating the number of witnesses the petitioner intends” for the words “list of at the witnesses,, in (a) (1), and by deleting the comma in (b) (1) and inserting the words “whose identity may be represented by an alphabet or a combination thereof.”
It is no longer susceptible to any argument as it has become settled that Practice Direction has the force of law and it is to be obeyed in the way of a rule of court. The Practice Direction however gives way when it comes into conflict with the Constitution and its enabling statute, See Buhari vs. INEC (2008) 19 NWLR (Pt. 1120) 246; Independent National Electoral Commission vs. Action Congress (2009) All FWLR (Pt.480) 732.
The Electoral Act, 2006 was pronounced as repealed by Section.157 of the Electoral Act, 2010 (as amended) which came into force on 20th August, 2010, and in line with the provision of Section 145 (2) thereof. Sections 243 and 285 of the Constitution of the Federal Republic of Nigeria 1999 as well as the enabling powers, the President of the Court of Appeal issued the Election Tribunal And Court Practice Directions 2011 which provides in paragraphs 1 and 2 as follows:
“1. The list of witnesses referred to in paragraph 4 (5) (a) of the First schedule to the Electoral Act 2010 (as amended) shall be deemed complied with where the identity of the witnesses are represented by initials, alphabets or a combination of both.
The requirements of paragraph a (5) of the First schedule to the Electoral Act 2010 (as amended) shall apply, mutatis mutandis to a petitioner’s reply and the list of the witnesses there shall also be deemed complied with where the identity of the witnesses are represented by initials, alphabets or a combination of both.”
The appellant in this appeal argued that he applied the concept of using initials or alphabets to denote his witnesses so as to hide their true identities and thereby prevent them from possible attack. That idea is neither novel or unlawful’ That was the purport of the amendment to the Election Tribunal And court Practice Directions 2007 by the Amendment Directions , 2007 and in the case of Abubakar vs. Yar Adua (2008) 2008) 19 NWLR (pt. 1120) , 2009 All FWLR (Pt.459) 1, Niki Tobi JSC reiterated his position in Buhari vs. INEC (supra) in the following words at page 159 of the NWLR report:
“what is the intendment of the amendment?
The intendment of the president of the court of Appeal in the amendment, in my humble view, is to protect witnesses from, possible attach by the opposite party. That is a valid reason and I commend the amendment which for all intents and purposes did not defeat the administration of justice. Considering the volatile nature of Nigerians, in matters of party politics propelled by their do or die attitude, there is real need to protect the witnesses. All the parties know, including the appellants behind the letters if the English alphabets are the deponents. All the parties know, including the appellants that the letters of the English alphabet had not the brain and human mind and automation to swear to affidavit and so it is more of a caricature than anything real. Why thy furore? I regard the issue as arid legalism and were technicality in relation to the alleged conflict between the practice Directions and the Evidence Act. The issue fails.”
The two judgments in Buhari vs. INEC and Abubakar vs. Yar’Adua (supra) were delivered on the same day, and date of 12th December, 2008 and the two Noble Jurists, Niki Tobi JSC and Walter Samuel Nkanu Onnoghen JSC were in both appeals. However, the statements of Niki Tobi JSC which I have quoted in both cases came in first in his lead judgment in Buhari vs. INEC and as a contributory judgment in Abubakar vs. YarAdua.
The learned Senior Advocate for the 1st respondent argued that the presentation of the identity of the witnesses by initials, alphabets and a combination of both as provided under paragraphs 1 and 2 of the Election Tribunal And Court Practice Directions, 2011 apply only to the list of witnesses and not to the written statements on oath of the witnesses. That may be the product of reading and interpreting those provisions literarily but the question will be whether that interpretation meets the purpose and objective of the provisions.
By paragraph 4 (5) of 1st Schedule to the Electoral Act, a petitioner is to accompany the petition with list of the witnesses he intends to call, and the written statement on oath of those witnesses. By paragraphs 1 and 2 of the Practice Directions, the Petitioner is permitted to represent the identity of the witnesses by initials, alphabets or a combination of both and the obvious purpose of this is to as much as possible keep the identity of those witnesses secret.
It is those same witnesses whose identity are permitted to be kept secret in the list of witnesses that are to be stated in the written statements on oath and whose identity will now be exposed to the entire world. It cannot be the intention of the Practice Direction to give the petitioner a choice by one hand and take it away by the other hand. This will obviously lead to an unwarranted absurdity, and a court has a duty to ensure that an enactment is given a meaning that does not lead to any absurdity and which shows the purpose of the law maker. see omoijahe vs. Umoru (1999) 8 NWLR (pt.163) 178.
If there was need to protect the witnesses in 2008 as eloquently stated by Tobi JSC in Abukakar vs. Yar’Adua (supra) the need has definitely become more under the present circumstances of our election system.
In the face of the read judgment of Niki Tobi JSc in Buhari vs. INEC (supra) and his contributory judgment in Abubakar vs. Yar’Adua (supra) both of which I set out earlier on, I have myself had recourse to section 90 of the Evidence Act, and it is made clear therein that the section is to be observed persons by before who affidavits are taken who in the instant case was the secretary to the Tribunal. Section 83 for instance imposes a duty to ensure that an affidavit is not sworn before a person who will use the same. Let me obverse here again that by paragraph 4 (5) of the 1st schedule to the Electoral Act, the petitioner is expected to accompany his petition by “written statement on oath, while section 90 of Evidence Act specifically refers to an affidavit.
since the law does not attach more weight to a dissenting judgment then a read judgment or contributory judgment, the Tribunal could not be right to have based its decision on the dissenting opinion. It is also plain from the judgment the Tribunal relied upon that the petitioner was not sent away without a trial even in the face of any irregularity in the processes.On the stage at which the Tribunal dealt the devastating brow which is at the pre-hearing conference, the petitioner has placed reliance on paragraph 12 (5) of the 1st Schedule to the Electoral Act 2010 to submit that striking the petition out at the stage of pre-hearing conference was wrongful. . The respondents relied on paragraphs 18 (7) (d) and 53 (5) of the 1st Schedule to the Electoral Act that by virtue of paragraph 18 (7) (d) objections on points of law can be taken at pretrial conference while paragraph 53 (5) permits the tribunal to determine an objection challenging the regularity or competence of an election petition at the close of pleadings.
Whatever arguments that may be advanced in that regard, pre-trial or pre-hearing conference does not mean more than what it says, i.e, pre-hearing ordinarily meaning, before or preceding hearing. The meaning of pretrial conference according to Black’s Law Dictionary is:
“An informal meeting at which opposing attorneys confer. The conference takes place shortly before trial and ordinarily results in a pretrial note.”
The question to be answered is whether the objection is of the character that if it is not raised at the stage, then the objector will be estopped or in any way be prevented from raising it. If it is not, then it is a matter for a future date.
Sub-paragraph 5 of paragraph 12 of the 1st Schedule to the Electoral Act, 2010 (as amended) was introduced or inserted into that paragraph 12 by Section 38 (c) of Electoral (Amendment) Act and its purport is that a person who objects to the hearing of a petition shall file a reply and raise the objection therein which objection will be heard along with the petition.
Paragraph 12 (5) which is a later enactment than paragraphs 18 (7) (d) and 53 (5) is intended to prevent parties from raising time wasting. The procedure laid down in the new paragraph 12 (5) of filing of, and taking the objection with the hearing is to ensure that all is heard at once so as to avoid a situation in which the objection may fail after a lot of precious and valuable time and energy would have been lost. After all that was the procedure adopted in Buhari vs. INEC which the Tribunal relied upon. That takes care of issue number two which I resolve also in favour of the appellant.
The appellant has complained of lack of fair hearing as the third issue in his brief. It is apparent that the Tribunal gave heed to technicality more than the need for substantial justice. The courts no longer have room for technicality.
They are to strictly to perform the role assigned to them under Sections 6 (6) and 36 of the Constitution of the Federal Republic of Nigeria, 1999, ie. to determine cases between the parties. Justice by technicality is no justice, indeed it is the other side of justice, it is not only bad, but quite incurably bad. The need for substantial justice is more in an election tribunal which proceedings has always been regarded as peculiar. See Egolum vs. Obasanjo (1999) 5 SCNJ 92.
The parties had submitted their issues before the Tribunal for adjudication, and the jurisdiction of the Tribunal was not questioned in the application placed before it wherein the applicant unequivocally stated both in the grounds for the application and the supporting affidavit evidence said he did not request for striking out of the petition.
It was unfair for the Tribunal to turn the appellant back from the seat of justice on the ground that his proposed evidence that was yet to be tendered were incompetent. It amounted to unjust and unfair hearing. I agree with the appellant and I resolve this issue in his favour.
The appellant has argued that this is a case in which this court can, and indeed should assume jurisdiction as a court of first instance pursuant to section 15 of Court of Appeal Act and determine the petition. His basic reason is that it is quite unlikely that the Tribunal may not have the time to hear the petition in the event that this appeal succeeds and the matter is sent back to the Tribunal for hearing.
The answer to this argument which I believe to be an appeal to the emotion or conscience of this court is quite simple and straight forward based on the decision appealed against.
It needs to be stated here again that the Court of Appeal is a created by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) in Section 237 (l) to exercise the original and appellate jurisdiction granted under Sections 239 and 240 respectively. The power of the Court is therefore statutory and must be exercised within the limits of the statute i.e. the Constitution of the Federal Republic of Nigeria, 1999 and as allowed by the Court of Appeal Act 2004 and other Laws that may grant jurisdiction tot the court.
The instance in which the Court of Appeal is statutorily endowed to exercise original jurisdiction is clearly stated under Section 239 of the constitution and that is to determine any question as to the validity of election of a person into the office of President or Vice President; the expiration of the term of office of the President or Vice President, and whether the office of the President or Vice president has become vacant.
The appellate jurisdiction of the Court of Appeal under Section 240 of the Constitution is to hear and determine appeals from the courts mentioned therein, which includes “other tribunals as may be prescribed by an Act of the National Assembly,” which in this instance is the Election Tribunal established under the constitution and the Electoral Act, 2010 (as amended). section 241 makes it clear that what the court of Appeal sits upon is the decision of the courts, and not what has not been decided. The power of this court is to rehear cases by way of appeal and not to transform itself into a court of first instance.
section 15 of the court of Appeal Act, 2004 grants general powers to the court of Appeal to make orders necessary for determining the real question in controversy in an appeal which include the orders the trial court should have made since the court of Appeal has full power and control over proceedings before it as if the entire proceedings were commenced before it as a court of first instance.
In the light of the eminence or pre-eminence of the constitution over other laws, the powers of this court can only be exercised within the concept of the constitution which is to hear and determine appeals from decisions of court and any tribunal and can not exercise original jurisdiction outside section 239 of the constitution of the Federal Republic of Nigeria, 1999.
In view of the foregoing, this court shall refrain from embarking on the unconstitutional exercise of conducting a trial of the appellant’s petition, I have resolved the three issues in this appeal in favour of the appellant, the result of which is that the appeal is allowed. In consequence whereof it is ordered that the Election petition No. EPT/CR/NA/2/2011 struck out on 4th July shall be remitted to the National And State House. of Assembly Election Petition Tribunal Holden at Calabar for hearing on its merits.
I make no order as to costs.
JA’AFARU MIKA’ILU, J.C.A.: I agree with all the reasons as in the lead judgment and conclusion the reached thereof. The petition shall be heard on its merit.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have read before now, in draft, the leading judgment of my learned brother, Isaiah olufemi Akeju, JCA just delivered. I am in full agreement with the extensive review, sound reasoning and conclusion reached therein. The said judgment is detailed and a demonstration of diligence and industry. I only intend to add a few comments of mine for further elucidation and emphasis.
Paragraphs 1 and 2 of the Election Tribunal and Court Practice Directions, 2011 are reproduced below:
‘1. The list of witnesses referred to in paragraph 4(5) (a) of the First Schedule to the Electoral Act 2010 (as amended) shall be deemed complied with where the identify of the witnesses are represented by initials, alphabets or a combination of both.
2. The requirements of paragraph.4(5) of the First Schedule-to the Electoral Act 2010 (as amended), shall apply mutatis mutandis to a petitioner’s reply and the list of witnesses there shall also be deemed complied with where the identity of the witnesses are represented by initials, alphabets or a combination of both.”
It can be readily seen that the main objective of the Practice Directions is to complement and not supplant either the Electoral Act, 20 10 (as amended) or the Evidence Act. It ensures and facilitates the expeditious hearing of election petitions and appeals arising therefrom, by providing guidelines and regulations that will enhance speedy disposal of election petitions and appeals and thereby accelerate the attainment of the intended objectives. Thus, compliance therewith will augur well for all the parties concerned and involved therewith.
Let me restate, that the Practice Directions stands on the same pedestal with rules of court. Indeed, under the relevant provision” bf the 1999 Constitution of the Federal Republic of Nigeria (as amended), the President of the Court of Appeal is empowered to make provisions for practice directions. It has also been held that the Practice Directions made under the said 1999 constitution and in respect of the Electoral Act, 2002 (2010) has the force of law. See Abubakar v. I.N.E.C. (2004) 1 NWLR (Pt. 854) 207 1227. Rules of court as it has been held times without number, are meant to be obeyed in compliance and not in breach. Thus, in the implementation of procedural provisions inclusive of practice directions, the uppermost consideration for the court or election tribunal is to do substantial justice and maintain the balance on the imaginary scale of justice, fairly and equitably between the parties.
Now in the instant case, Paragraph 4 (5) of the First Schedule to the Electoral Act, 2010 (as amended) provides:
“(5) The election petition shall be accompanied by –
(a) a list of the witnesses that the petitioner intends to call in proof of the Petition;
(b) written statements on oath of the witnesses; and
(c) copies or list of every document to be relied on at the hearing of the petition.”
It is a cardinal principle of construction that words are to be accorded their natural, plain, literal and ordinary meaning, unless the circumstances require otherwise. See Jamal Steel Structures Ltd. v. African Continental Bank Ltd. (1973) 1 All NLR (Pt. 2) 208. Additionally, it is a cardinal rule of interpretation of statutes that a statute must be considered as a whole. See Umar v. Onikata (1999) 3 NWLR (Pt. 596) 558/571.
Again, the law is settled’ that a Schedule to a statute is as much a part of an Act as any other. It may be used in construing provisions in the statute. Similarly, provisions in a schedule will be construed in the light of what is enacted in the sections of the statute. see Samamo v. Anka (2000) 1 NWLR (Pt.640) 283. Hence, a provision in the schedule of an enactment is as good as any provision in the enactment provided there is no conflict between the two. It has the same legal validity or force as any other provision in the enactment. None can override the other unless the enactment expressly says so. See Peters v. David (1999) 5 NWLR (Pt. 603) 486/495.
I am thus unable to fathom a situation where a petitioner in due compliance with provisions of the Practice Direction, will pay a total sum of N400,000.00 (Four Hundred Thousand Naira) as security for costs and all other expenditures as provided under Paragraphs 3 and 4 of the Practice Directions and yet the same petitioner will be sent packing and unceremoniously too for observing in compliance and not in breach, the provisions of Paragraphs 1 and 2 of the same practice Directions which provide the liberty, license and leverage for the same petitioner, if he so chooses, to clothe and cover the identity of his witnesses by having recourse to the use of “initials, alphabets or a combination of both.”
I am also of the mindset, that it is both logical and legal to ask; that if the protection sought or intended to be given by the Practice Directions is meant or limited to the “list of the witnesses” mentioned/ referred to in Paragraph 4 (5) of the First Schedule to the Electoral Act, 2010 (as amended) alone and as argued by the learned senior advocate for the 1st respondent; what would be the fate of the same witnesses who are meant to be protected, so to say, as contained therein; that is under Paragraph I of the Practice Directions and further mentioned in paragraph 4 (5) (b) of the same First Schedule to the Electoral Act, 2010 (as amended). If the witnesses are left bare, exposed and uncovered to all and sundry before they are formally presented and unveiled at the hearing before the election tribunal, by the petitioner who chose in the first instance to hide their identities; with or without reference thereto by Paragraph 1 of the Practice Directions’ If this is the case, then the intendment of the Practice Directions in respect thereof will be rendered otiose, meaningless and self defeatist.
I do not think so. I also do not want to share or subscribe to this line of argument/thinking. Protected they are and protected they shall remain – I mean the witnesses.
To further resolve this issue, the questions be asked: Is an affidavit comparable or the same with a written statement on oath of a witness for the purpose of Paragraph 4 (5) of the First Schedule to the Electoral Act, 2010 (as amended)?
Furthermore, whether section 90 (b) of the Evidence Act applies to such a written statement on oath of a witness in an election petition situation?
Affidavit evidence is, in law, evidence just as viva voce evidence adduced in court. Indeed, it has similar probative value and equality. It can be acted upon in like manner. See Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 663, Skypower Express Ainrays Ltd. v. Olima (2005) 18 NWLR (Pt. 957) 224. This is more so, when any deposition in an affidavit which is not challenged, countered or contradicted in a counter affidavit must be accepted and acted upon by the court as true. see Egbuna v. Egbuna (1989) 2 NWLR (Pt.106) 773; Ikono v. L.G.V. De Beacon and securities Finance Ltd . (2002) 4 NWLR (Pt.756) 128 and Skypower Express Airways Ltd. v. Olima (supra).
on the reverse, in the case of a written statement on oath of a witness in an election petition, unless and until such a statement is formally adopted by the witness and cross examined thereon, the said written statement on oath, does not crystallize or transform into evidence, talk less of whether or not it will be accepted and relied upon by the election tribunal. Indeed, where a witness has previously adopted his written statement on oath and for whatever reason was allowed to go away and he failed to come back to complete his testimony either in chief or subsequent cross examination, his evidence in the form of an adopted written statement on oath, in the given circumstance, would be irrelevant, goes to no issue and would be discarded as lacking in evidential or probative value. see Yusuf v. Obasanjo (2005) 18 NWLR (Pt.956) 96/132.
In the instant case and while arriving at its decision the election, the election tribunal, placed heavy reliance on the dictum of Onnoghen, JSC in Buhari v. I.N.E.C. (2008) 19 NWLR (Pt.1120) 246/511 paragraphs E- G, where he held thus:
“In the circumstance I hold the view that the witness depositions of the 4th and 5th respondents are incompetent as they offend the provisions of section 90(b) and (c) of the Evidence Act and consequently resolved the issues in favour of the appellant.”
Thus, according to the learned judges of the election tribunal, “in deference to this binding precedent”‘ they proceeded and held that the petitioner and the written statements on oath of all his witnesses in the instant petition did not comply with Section 90(b) of the Evidence Act. The election tribunal accordingly struck out the said depositions.
It should be noted and importantly too, that the pronouncement quoted above and relied upon by the election tribunal, is contained in the dissenting judgment of His Lordship Onnoghen, JSC in the above cited case. Now, what is dissenting judgment? In law, the position of a dissenting judgment or its nature is not beclouded at all. A dissenting judgment is exactly what it says it is – a dissenting judgment.
To dissent is to differ, disagree or demur. In the case of a judgment, it is a legal opinion that disagrees with the position maintained by the majority of the court. In Nwani v. Bakari (2007) 1 NWLR (Pt.1015) 333 the Jos Division of this court, stated that, ” a dissenting judgment is the opposite of a concurring judgment” To my mind, it is equally an anti thesis to the leading judgment wherever they differ. Thus, being on parallel lines, never the twain shall meet. Howbeit, the law is settled, that under the doctrine of stare decisis, it is the judgment of the majority in an appellate court, anchored, epitomized and spearheaded by the leading judgment that is binding on a lower court. In Chief Bola Ige v. Dr. Omololu Olunloyo & Ors. (1984) 1 SC 258/268 it was held thus:
“A dissenting judgment or minority judgment as it is sometimes called is not the judgment of the court under our 1979 Constitution. It is the judgment of the majority that is the judgment of the court. See Section 294 (3) of the Constitution of the Federal Republic of Nigeria, 1979.” – per Obaseki JSC.
For the fuller reasons more ably expatiated in the leading Judgment of my learned brother Akeju, JCA, I too allow the appeal and accordingly endorse the consequential orders made in the said lead judgment.
William BatlantyneFor Appellant
Joe Agi, Esq. SAN for the 1st Respondents
Uzo Onwukwe, Esq for 2nd and 3rd RespondentsFor Respondent