NATHANIEL IGE AGUNBIADE v. BUSAYO OLUWOLE OKE & ORS
(2010)LCN/3891(CA)
In The Court of Appeal of Nigeria
On Monday, the 21st day of June, 2010
CA/I/EPT/NA/90/2008
RATIO
FORMULATION OF GROUNDS OF APPEAL: WHEN A GROUND OF APPEAL WILL BE COMPETENT
All that is required of a ground of appeal to be competent is that it must contain sufficient notice of precise nature of the Appellant’s complaint. The purpose is to ensure that the Respondent is not taken by surprise.. See the cases of IKWEKI & ORS VS. IBILE (2005) ALL F.W.L.R Part 257 AT 1401 and SARAKI VS. KOTOYE (1992) 11-12 S.C.N J at 26. They are to the effect that once a ground of appeal complains about the judgment of the lower Court the ground will be held to be competent without more. The point was succinctly put by the Supreme Court in the case of HAMBE VS. ITUEZE (2001) 4 N.W.L.R Part 372 wherein the Court stated thus: ‘The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to other side. The application of such rules should not be reduced to a matter of mere technicality whereby the Court will look at the form rather than the substances. The prime purpose of the rules of appellate procedures, both in this Court and in the Court of Appeal, that the Appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon the appeal and; that such grounds should not be vague, or general in terms and must disclose a reasonable ground of appeal, is to give sufficient notice and information, to the other side of the precise nature of complaint of the Appellant and, consequently, of the issues that are likely to arise on the appeal. Any ground of appeal that satisfied that purpose should not be struck out, notwithstanding that it did not conform to a particular form.” PER MODUPE FASANMI, J.C.A.
ATTITUDE OF THE COURT TOWARDS A GROUND WHICH COMPLAINS OF BOTH ERROR AND MISDIRECTION
I have also considered the grounds which complain of both error and misdirection. The guiding principle in respect of the objection is well stated by the Supreme court in the case of ADEROUMU vs. OLOWU (2000) 2 S.C Part II page 1 particularly at page 18 lines 27-48 where the eminent jurist of blessed memory Ogundare J.S.C stated thus: “The dictum of NNAEMEKA v. AGU, J.S.C in NWADIKE vs. IBEKWE (Supra) did not go as far as some of their Lordships of the Court of Appeal made it to look. The learned justice of the Supreme Court advised against lumping together in a ground of appeal complaints that ought better to have been split into different grounds of appeal. I commend this wise Counsel to all legal practitioners engaged in drafting notices of appeal. I do not think, however, that non-adherence to this wise Counsel will necessarily render incompetent any ground of appeal that otherwise complies with the requirement of the rules.” PER MODUPE FASANMI, J.C.A.
WHAT IS THE PURPOSE OF THE PRACTICE DIRECTION
The purpose of the Practice Direction is to complement the provisions of the Electoral Act by facilitating the expeditious hearing of election petitions. It is also to guide and regulate compliance with and observance of the provisions of the First Schedule to the Act and the Federal High Court Rules where applicable. See the cases of UNIVERSITY OF LAGOS V. AIGORO (1985) 11 S.C at 152; YUSUF V. OBASANJO (2003) 9-10 S.C at and ADAMS V. UMAR (2009) 5 N.W.L.R Part 1133 page 41 at 107. It makes the rules of Court more efficacious and helps to avoid absurdity in the application of the rules and keeps the wheel of Justice well greased to roll along smoothly. PER MODUPE FASANMI, J.C.A.
DUTY OF THE COURT TO ALWAYS ENSURE THAT SUBSTANTIAL JUSTICE IS DONE AND NOT TECHNICAL JUSTICE
In a situation where grave allegations are made by the other party as in the case at hand, Tribunals need not rely heavily on technicalities to the detriment of the serious issues needing scrutiny and determination. To shut up the party making allegation does much harm to the cause of justice. See OWUN V. I.N.E.C. (1999) 10 N.W.LR Part 622 at 201; ANOZIE VS. OBIOCHERE (2006) 8 N.W.L.R Part 981 at 140 and ABUBAKAR V. YAR’ADUA (2008) 1 S.C Part 11 page 77 at 122, the eminent jurist Niki Tobi J.S.C postulated thus: “Gone are the days when Courts of law were only concerned with doing legalism. We are now in days when Courts of law do substantial justice in the light of prevailing circumstances of the case. It is my hope that the days of doing technical justice will not surfice again. And what is more, election petitions are sui generis and should be treated in that domain or realm.” The Supreme Court affirmed the decision of the Court of Appeal granting leave to the applicants to call 213 additional witnesses and to file their witness statements. See also AREGBESOLA VS. OYINLOLA (2009) 14.N.W.L.fc Part 1162 page 429 ratio 20 where this Court held: “The need to do substantial Justice is greater in an election petition cases than in any other cases. This is so because the Court is not only concerned with the rights of the parties inter se but also the larger interests and the rights of the people in the various local government areas who had exercised their franchise on Election Day.” PER MODUPE FASANMI, J.C.A.
CONSEQUENCE OF THE BREACH OF THE RIGHT OF A PARTY TO FAIR HEARING ON THE COURT PROCEEDINGS
The term “fair hearing” signifies a trial which is conducted according to dictate of legal principles and rules formulated to ensure that Justice is done to all the parties in a cause or matter. The Tribunal cannot be said to have obeyed the hallowed principles of natural justice, equity and good conscience in the conduct of the trial having disallowed the Appellant from calling witnesses that will assist him to maintain his petition against the Respondents and also preventing the representative of the Resident Electoral Commissioner to be sworn and give evidence in the petition for the Appellant. 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 the cases of ADIGUN v. A.G. OYO STATE (1997) 1 N.W.LR Part 53 at 678. PER MODUPE FASANMI, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
NATHANIEL IGE AGUNBIADE Appellant(s)
AND
BUSAYO OLUWOLE OKE
PEOPLES DEMOCRATIC PARTY (PDP)
INDEPENDENT NATIONAL ELECTORAL COMMISSION
RESIDENT ELECTORAL COMMISSIONER/
RETURNING OFFICER, OSUN STATE
THE ELECTORAL OFFICER, ORIADE L.G.A OSUN STATE
THE ELECTORAL OFFICER, OBOKUN L.G.A OSUN STATE
THE RETURNING OFFICER FOR ELECTION TO ORIADE/
OBOKUN FEDERAL CONSTITUENCY
THE PRESIDING OFFICERS FOR UNITS 1-9
WARD1, ERIN OKE, ORIADE L.G.A
THE PRESIDING OFFICERS FOR UNITS 1-10,
WARD 2. IJESA ERIN, ORIADE L.G.A
THE PRESIDING OFFICERS FOR UNITS 1-17,
WARD 3, IJEBU JESA, ORIADE LGA
THE PRESIDING OFFICERS FOR UNITS 1-8,
WARD4 IWOYE ERE, ORIADE LGA
THE PRESIDING OFFICERS FOR UNITS 1-8,
WARD 5 IKEJI IRA ORIADE LGA
THE PRESIDING OFFICERS FOR UNITS 1-4,
WARD 6-IKEJI IRA ORIADE L.G.A
THE PRESIDING OFFICERS FOR UNITS 1-10,
WARD 7-IKEJI ARAKEJI, ORIADE LGA
THE PRESIDING OFFICERS FOR UNITS 1-14
WARD 8-APOTI/DAGBAJA, ORIADE L.G.A
OTE PRESIDING OFFICERS FOR UNITS 1-8,
WARD 9- IPETU ORIADE LGA
THE PRESIDING OFFICERS FOR UNITS 1-8,
WARD 10-IPETU II ORIADE LGA
THE PRESIDING OFFICERS FOR UNITS 1-8, WARD 11,
IJEDA ILOKO ORIADE LGA
ERINMO/IWARAJA ORIADE LGA
THE PRESIDING OFFICERS FORJUNITS 1-11,
WARD 1-OBOKUN LGA
THE PRESIDING OFFICERS FOR UNITS 1-8,
WARD2, IPETU-ILE, OBOKUN LGA
THE PRESIDING OFFICERS FOR UNITS 1-6,
WARD 3 ILAHUN/IKINYINWO, OBOKUN LGA
THE PRESIDING OFFICERS FOR UNITS 1-8, WARD 4,
ILASE OBOKUN LGA
THE PRESIDING OFFICERS FOR UNITS 1-6 WARD 5,
IDOKO/IBALA/EESUN OBOKUN, LGA
THE PRESIDING OFFICERS FOR UNITS 1-11, WARD 6
IMESHLE, OBOKUN LGA
THE PRESIDING OFFICERS FOR UNITS 1-13, WARD 7
ESA-OKE, OBOKUN LGA
THE PRESIDING OFFICERS FOR UNITS 1-6,
WARD 8, OTAN ILE, OBOKUN LGA
THE PRESIDING OFFICERS FOR UNITS WARD 9,
ESA ODO, OBOKUN LGA
THE PRESIDING OFFICERS FOR UNITS 1-7,
WARD 10, ILARE, OBOKUN LGA
THE INSPECTOR GENERAL OF POLICE
THE COMMISSIONER OF POLICE, OSUN STATE Respondent(s)
MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Osun State Election Petition Tribunal delivered on the 30th of June 2008.
Briefly on the 21st of April 2007, elections were held into the Federal House of Representatives for Oriade/Obokun Local Government Federal Constituency of Osun state. The Appellant contested the election, on the Platform of the Action Congress (AC) while the 1st Respondent contested on the platform of the Peoples Democratic Party (PDP). At the conclusion of the election, the 3rd Respondent returned the 1st Respondent as the winner. The Appellant was dissatisfied with the return of the 1st Respondent. Appellant filed its petition at the Tribunal to challenge the return of the 1st Respondent as the winner of the April 21st 2007 House of representative Election for Oriade/Obokun Local Government Federal constituency on the following grounds:
(a) That the National Assembly Election for Oriade/Obokun Local Government Federal Constituency in the House of Representatives held on 21st April 2007 is invalid by reason of non-compliance with the provisions of the Electoral Act 2006
(b) That the said election was vitiated by substantial non-compliance with the mandatory statutory requirements which substantially affected the validity of the said election that none of the candidates in the said election can be validly returned as having validly won the said election.
The parties duly filed and exchanged pleadings, witness statements on oath and list of documents to be relied upon at the hearing in compliance with the Practice Directions 2007. After the conclusion of the trial, the parties filed and exchanged written addresses. In a considered judgment delivered on 30th June 2008, the Tribunal dismissed the petition. The Appellant being dissatisfied with the decision filed a notice of appeal on the 7th of July, 2008. The Appellant, 1st & 2nd Respondents, 196th – 197th Respondents filed and exchanged their respective briefs of argument. 3rd – 195th Respondents did not file any brief.
Appellant distilled eight issues for determination from the fourteen grounds of appeal as amended. They are:
(1) Whether the issue of excess vote i.e vote in excess of ballot paper allocated being one of the irregularities alleged was not proved and pleaded in this case. (Arising from Grounds 1 & 9)
(2) Whether the malpractices, violence, acts of thuggery, irregularities and the various non-compliance complained of by the Appellant against the 1st Respondent personally and other Respondents did not substantially affect the result of the election as to warrant the nullification of the election. (Grounds 6 & 7)
(3) Whether the Tribunal was right to fail to attach weight to the 33 exhibits tendered before the Tribunal merely because they were not tendered through their makers (Ground 8)
(4) Whether the evidence of the Petition witnesses who gave eye witness account could be hearsay evidence merely because they were not authorized to be at the polling unit (Arising from grounds 3 & 5)
(5) Whether the evidence led by the Petitioner at the Tribunal are at variance with pleading and not pleaded as to justify the Tribunal’s act of not attaching any probative value to them (Grounds 4 & 10)
(6) Whether the tribunal’s refusal to allow the Petitioner to call additional witness to tender the inspection report and the rejection of ballot papers as exhibits does not amount to wrongful exclusion of evidence and denial of fair hearing (Grounds 11 & 12)
(7) Whether it was proper for the Tribunal to disallow the Resident Electoral Commissioner (R.E.C) who was served with subpoena duces tecum and subpoena ad candum from entering the witness box and giving its evidence on oath: merely because its evidence was not front loaded in line with the Practice Direction (Ground 8)
(8) Whether exhibit 6 – the video cassette was rightly disregarded and expunged from the record on the ground that it was not pleaded.
Learned Counsel for the 1st & 2nd Respondents formulated four issues for determination although he claimed that five issues are essential for the consideration of the appeal. The four issues itemized in the brief are stated hereunder:
(1) Whether the Tribunal adopted a proper evaluation to the evidence proffered by the parties with the pleadings in arriving at its decisions (Grounds 1, 2, 4, 5/ 7, 8, 9, 10 & 14)
(2) Whether the evidence adduced at the trial supports the allegation of substantial non-compliance with the Electoral Act 2006 having regard to the quality of the evidence led at the trial (Grounds 3&6)
(3) Whether the refusal to allow the Appellant call additional witness to give evidence of the Inspection conducted pursuant to the order of the Tribunal is tantamount to a breach of the fundamental right of the Appellant to fair hearing (Grounds 11 & 12)
(4) Whether denying the representative of Resident Electoral Commissioner Osun State on subpoena to be sworn and to give evidence amount to a breach of the Appellant’s right to fair hearing (Grounds 8)
While learned Counsel for the 196th & 197th Respondents distilled one issue for determination thus:
(1) Whether the Appellant has by the evidence adduced at the lower Tribunal been able to prove the allegation of malpractices like violence, acts of thuggery, intimidation, electoral fraud and other irregularities made against the 196th and 197th Respondents in accordance with requirements of the law (Grounds 6 & 7)
At the hearing of the appeal, learned Counsel for the 1st and 2nd Respondents informed the court of the preliminary objection embedded in the 1st & 2nd Respondents brief contained at page 5 of the said brief. It was argued by learned Counsel in the brief that grounds 1, 2, 3, 4, 5 & 6 contained in the notice and grounds of appeal dated 7th July 2008 are incompetent as they contravened the provisions of Order 6 Rule 2 subrules 3 and 6 of the Court of Appeal Rules, 2007. According to Counsel, ground one of appeal alleges error in law whereas the complaint is based on facts of over voting. This is contrary to the provision of Order 6 of the rules. Particularly 2, 3, and 4 under the ground are argumentative which are not particulars of errors thereby making it defective and incompetent. The particulars of grounds 2, 3, 4, 5 & 6 are equally argumentative. Learned Counsel submitted that since the notice of appeal is incompetent, he urged the Court to hold that the appeal is incompetent, and strike out the said notice as all the grounds contained therein are defective. He relied on the case of AJUWA VS. SPDC (2008) 10 N.W.L.R (Part 1094) page 64 at 96 para H where it was stated that:
“A proper or valid notice of appeal is the foundation upon which an appeal and all other adjuncts can be sustained and once the notice of appeal as filed is dissatisfying, disputable, it leaves much to be desired”
Further at pages 95-96 para H and A-B the court went on thus:
“If the original notice of appeal is found to be incompetent, any other order, including the brief of argument of the Appellant already filed would have no legs upon which they could stand. All those structures would be bound to definitely give way and collapse. He urged the court to dismiss the appeal and uphold the decision of the lower Tribunal”
In reply, learned Counsel for the Appellant submitted that the preliminary objection is absolutely misconceived, baseless, and erroneous. Appellant’s brief filed thereon are all competent and perfectly in order. He argued that Courts are enjoined to move away from technicalities in the interpretation of the rules of Court and rather dwell on substance and justice. He referred to the Supreme Court case of SOSANYA VS. ONADEKO (2005) 8 N.W.L.R Part 926 page 185 at 226. The Supreme Court while considering the competence of a ground of appeal said thus amongst others:
“In the determination of the strengths of grounds of appeal in an appeal, this Court should not involve itself instinctively and parochially in technicalities or niceties or our adjectival law in the interpretation of the enabling rules of Court. On the contrary, this Court should examine the grounds of appeal to see whether they satisfy the rules governing the framing of grounds. Once a ground of appeal is succinctly couched, specifically described and avoids vagueness, repetition, narration of argument to the extent that the adverse party knows the exact complaint against the judgment, this court will be very reluctant to strike it out on mere technicality of not following rules of court. After all, it is good law that rules of Court are made for the courts and not the other way round and that is the Courts are made for their rules. This means that if compliance with rules of Court will cause injustice or miscarriage of justice in the case, the Court will, in its choice of doing substantial justice, detract or move away from the rules of Courts.”
Learned Counsel for the Appellant submitted that a ground of appeal is competent once it relates to the decision appealed against and constitute a challenge to the ratio of the decision. He submitted that the essential expectation is that there must be clarity of thought which ought to precede clarity of expression. It is argued further that the grounds of appeal complained about having been couched in clear and concise language and arising from the decision of the Court cannot be said to be incompetent. Learned Counsel urged the Court to discountenance the objection and hear the appeal on its merit.
I have carefully considered the submissions of learned Counsel for the 1st & 2nd Respondents, the Appellant’s Counsel and the authorities cited by them as regards the competence of the grounds of appeal. I have equally considered grounds 1, 2, 3, 4, 5 & 6 contained on the notice and grounds of appeal. I agree with the learned Counsel for the 1st & 2nd Respondents that the grounds are unnecessarily argumentative. However the complaints therein are clear. The objection raises an issue of technicality, which does not affect the substance of the said grounds of appeal. All that is required of a ground of appeal to be competent is that it must contain sufficient notice of precise nature of the Appellant’s complaint. The purpose is to ensure that the Respondent is not taken by surprise.. See the cases of IKWEKI & ORS VS. IBILE (2005) ALL F.W.L.R Part 257 AT 1401 and SARAKI VS. KOTOYE (1992) 11-12 S.C.N J at 26. They are to the effect that once a ground of appeal complains about the judgment of the lower Court the ground will be held to be competent without more. The point was succinctly put by the Supreme Court in the case of HAMBE VS. ITUEZE (2001) 4 N.W.L.R Part 372 wherein the Court stated thus:
‘The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to other side. The application of such rules should not be reduced to a matter of mere technicality whereby the Court will look at the form rather than the substances. The prime purpose of the rules of appellate procedures, both in this Court and in the Court of Appeal, that the Appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon the appeal and; that such grounds should not be vague, or general in terms and must disclose a reasonable ground of appeal, is to give sufficient notice and information, to the other side of the precise nature of complaint of the Appellant and, consequently, of the issues that are likely to arise on the appeal. Any ground of appeal that satisfied that purpose should not be struck out, notwithstanding that it did not conform to a particular form.”
I have also considered the grounds which complain of both error and misdirection. The guiding principle in respect of the objection is well stated by the Supreme court in the case of ADEROUMU vs. OLOWU (2000) 2 S.C Part II page 1 particularly at page 18 lines 27-48 where the eminent jurist of blessed memory Ogundare J.S.C stated thus:
“The dictum of NNAEMEKA v. AGU, J.S.C in NWADIKE vs. IBEKWE (Supra) did not go as far as some of their Lordships of the Court of Appeal made it to look. The learned justice of the Supreme Court advised against lumping together in a ground of appeal complaints that ought better to have been split into different grounds of appeal. I commend this wise Counsel to all legal practitioners engaged in drafting notices of appeal. I do not think, however, that non-adherence to this wise Counsel will necessarily render incompetent any ground of appeal that otherwise complies with the requirement of the rules.”
Notwithstanding the inelegant drafting of grounds 1-6, the complaints of the Appellant are clear and the Respondents are not left in any doubt about what the Appellant’s complaints are. For the reasons given above, I hold that the said grounds are competent. The objection lacks merit and it is accordingly dismissed.
I shall now proceed to consider the merits of the appeal. Having considered the issues formulated by the parties, I am of the view that the issues formulated by the 1st & 2nd Respondents are adequate to dispose of the appeal. I shall first consider issues 3 & 4 which raise the issue of fair hearing together. The issues are stated hereunder.
Issues 3
Whether the refusal to allow the Appellant call additional witness to give evidence of the inspection conducted pursuant to the order of the Tribunal is tantamount to a breach of the fundamental right of the Appellant to fair hearing
AND
Issue 4
Whether denying the representative of Resident Electoral Commissioner Osun State on subpoena to be sworn and to give evidence amounts to a breach of the Appellant’s right to fair hearing.
Learned Counsel for the Appellant on issue 3 argued that the Tribunal during the course of proceedings dismissed Appellant’s application to call additional witness and tender the inspection report. Appellant had sort leave to call additional witness to tender the inspection report on the extreme circumstance canvassed before the lower Court as follows:
(i) The witness and witnesses statement is necessary to give evidence discovered consequent upon order of this Tribunal
(ii) The materials upon which the testimony of the witness is based were not ready at the time of filing the petition and during the pre-hearing session
(iii) The materials upon which the testimony and the application is based was recently concluded
(iv) The leave sort to call additional witness was to give effect to the order of inspection previously given by the Tribunal
Learned Counsel contended further that the dismissal of the application by the Tribunal has denied the Appellant the opportunity to present all materials necessary for the prosecution of his case and there by denying the Appellant fair hearing. He submitted that this is a grave violation of the Appellant’s right as enshrined a Section 36 of the 1999 Constitution. Learned Counsel referred to the case of AUDU VS. GUTA (2004) 4 N.W.L.R Part 864 at 463. He also cited the cases of S.B.N PLC VS. CROWN STAR & CO. LTD (2003) 6 N.W.L.R Part 815 page 1 particularly at 5 & 6; NNJAIOFOR VS. UKONI (1985) 2 N.W.L.R. Part 9 page 689 at 703 para F. He stated that the extreme circumstances deposed to in the affidavit in support and the further and better affidavit should have made the Tribunal to grant the application to enable the report of the inspection to be tendered in evidence.
On issue 4 it was argued by the learned Counsel for the Appellant that a subpoena i.e Subpoena duces tecum and ad testifi candum was served on the Resident Electoral Commissioner (R.E.C) who was represented in Court by the Electoral Officers of Oriade and Obokun Local Governments i.e the two Local Governments working up the Constituency. He submitted that the Court wrongly upheld the objection of the 1st Respondent’s Counsel from allowing the witness to testify on oath to be sworn. He submitted that having been brought to Court with a subpoena ad testificandum it was compelling on the witness to enter the box and give its evidence on oath. It was out of place for the Tribunal to hold that the witness cannot give evidence on oath because the evidence of the witness was not front loaded as ordered by the practice direction. He submitted that asking the Appellant to front load evidence of its adversary is asking him to do the impossible. He contended that since the Practice Direction does not make provision for subpoena, it was wrong to have recourse to the Practice Direction on the issue of subpoena. The refusal of the Tribunal to allow the subpoenaed witness to testify on oath made it impossible for the Appellant to elicit evidence from the witness on all the Certified True Copies of the 3rd Respondent’s document tendered. The refusal of the Court to allow the subpoenaed witness to testify on oath made the court to hold that the exhibits were not tied to any particular unit and attaching no probative value to them. Learned Counsel submitted that disallowing the witness from testifying in the proceedings infringed the fundamental right of the Appellant to fair hearing by virtue of Section 36 of the 1999 Constitution. Learned Counsel urged the Court to resolve the two issues in favour of the Appellant.
In reply, learned Counsel for the 1st and 2nd Respondents on issue 3 submitted that the refusal to allow the Appellant to call additional witness to give evidence of the inspection report does not in anyway amount to a breach of the fundamental right of the Appellant to fair hearing. He argued that the totality of Section 6 (ii), (2) and (3) of the Election Petition and Court Practice Direction 2007 is that the Tribunal has a discretion to determine whether or not’ an applicant seeking to move an application outside a pre-hearing session has shown exceptional circumstance or extreme circumstance. Learned Counsel referred to the case of YESUFU V. ILORI (2008) 6 N.W.L.R (Part 1083) at 33 where this Court held at page 340 thus:
“In matters of discretion, no one case can be authority for another and the Court cannot be bound by a previous decision to exercise its discretion in a particular way.”
He went further in his submission that the Appellant failed to show from the affidavit proffered that extreme circumstance exist to warrant the bringing of the application at the stage of the proceedings. He referred to the case of WILLIAMS VS. HOPE RISING VOLUNTARY FOOD SOCIETY (1992) N.S.CC at 36 where the, Supreme Court held:
“…the application must not only give reasons for the failure to bring his application within time, he must go further and satisfy the Court that the reasons are acceptable.”
It was further argued by learned Counsel that the fact of granting an application to inspect electoral material does not ipso facto mean that the Tribunal must also grant application to call additional witnesses. The Appellant could make use of the facts, materials, information e.t.c gathered during the inspection through her witnesses already listed and whose statement before the Tribunal are replete with allegations of multiple voting, over-voting, non-counting, non collation, non accreditation e.t.c. The issue of breach of fundamental right to fair hearing does not arise. A complaint of denial of fair hearing would have substance when there is no opportunity offered to the Appellant to be heard. He referred to YESUFU VS. ILORI (2008) 6 N.W.L.R Part 1083 at 333.
Learned Counsel for the 1st and 2nd Respondents argued further that granting such application will run contrary to the provision of paragraph (I) of the Election Tribunal and Court Practice Direction (2007) which provides thus:
“All petition to be before the Tribunal or Court shall be accompanied by:
(a) List of all 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 therefore follows that by the use of the word “shall” in paragraph 1 of the practice Direction, a Petitioner must accompany her petition with the list and deposition of witnesses. Practice Direction has the force of law and it must be obeyed strictly as they constitute conditions precedent for the presentation and maintenance of Election Petition. He referred to BUHARI V. I.N.E.C (2008) 4 N.W.LR Part 1078 at 546.
Learned Counsel for the 1st & 2nd Respondents submitted that having failed to follow the procedure laid down in law and having failed to satisfy the Tribunal that the justice of the case demands the calling of additional witness the refusal by the tribunal to allow the Appellant call additional witness to give evidence of inspection is not tantamount to a breach of the Appellant’s right to fair hearing.
Learned Counsel on issue four also submitted that the fact that the lower Tribunal prevented or denied the representative of Resident Electoral Commission Osun State on subpoena to be sworn and to give evidence does not-amount to a breach of the Appellant’s right to fair hearing. He also contended that the approval of the issuance of the subpoena by the Tribunal does not automatically tantamount to allowing the R.E.C. to be sworn and to testify in the petition if there is no compliance with the provision of paragraph 1 of the Practice Direction as earlier canvassed above. He submitted that since the Resident Electoral Commissioner has produced the documents listed in the subpoena, the Appellant is at liberty to use the documents so produced and laid before the Tribunal to conduct her case through the witnesses listed by the Appellant who had written statement before the Tribunal. The Appellant can infact use same to cross examine the witnesses called by the Respondents in order to establish the allegations contained in the petition.
Learned Counsel argued further that the lower Tribunal took into consideration the surrounding circumstances of the application to examine on oath the subpoenaed Resident Electoral Commissioner and exercised its discretion to disallow the R.E.C. There cannot be a precedent for the Court or Tribunal to exercise discretion otherwise it is no longer discretion.
He submitted that the Practice Direction makes adequate provisions to complement the Electoral Act for parties in an election petition to obtain justice except a party who has failed to follow the procedure laid down and such a party can therefore not be heard to complain of breach of fundamental right to fair hearing. Learned Counsel urged the Court to resolve the two issues against the Appellant.
Learned Counsel for the 3rd – 195th Respondents did not file any brief but he adopted & relied on the brief of argument of the 1st & 2nd Respondents. Issues 3 & 4 in their brief are therefore adopted by the 3rd – 195th Respondents.
I have carefully examined the briefs of argument filed by the parties, the authorities cited by them and the records of appeal before the Court. I will start with issue 3 in the order of the arguments of the parties before the Court.
Appellant’s application for an order of inspection of electoral materials was brought pursuant to Section 159 (1) & (2) of the Electoral Act 2006, Section 285 (2) of the 1999 Constitution and under the inherent jurisdiction of the Hon. Tribunal.
The application was argued on 14/7/07 and was granted. The application was not opposed by any of the Counsel representing the different sets of Respondents.
Paragraphs 10, 11, 12 and 13 of the affidavit in support are germane to this application and they are reproduced hereunder:
“(10) I know that the grounds of the petition include, among others, electoral malpractices, rigging, multiple voting, over voting, snatching of ballot boxes and papers in different polling units of Oriade/Obokun Federal Constituency in Osun State
(11) The Petitioner/Applicant require inspection of the polling documents and other electoral materials, described in the motion paper herein which are in the custody of the 3rd & 4th Respondents and which were allegedly used in the conduct of the House of Representative election on the 21st of April 2007 leading to the return of the 1st Respondent as duly elected
(12) That the Applicant require the inspection of the documents and materials stated on the motion paper to enable it maintain its petition.
(13) That I believe the Respondents will not be prejudiced by this application.”
The order sought was clearly not for the purpose of instituting the petition. The order was granted on 14/7/07 after the time for instituting a petition had elapsed, it is therefore clear that the tribunal in granting the order accepted the averments in the affidavit in support and was satisfied that it was required for the purpose of maintaining the petition already filed. The said inspection was conducted to conclusion by the Appellant and it was necessary to give a report of the said inspection in order to sustain the allegations made by the Appellant to the petition.
Section 159 (1) of the Electoral Act under which the application was brought provides:
“An order for an inspection of a polling document or an inspection of a document or any other packet in the custody of the Chief National Electoral Commissioner or any other officer of the commission may be made by the Election Tribunal or the Court if it is satisfied that the order required is for the purpose of instituting or maintaining an election petition”
“It is pursuant to the grant of the application at page 266 of the record that the Appellant filed application to call additional witness consequent upon evidence discovered. The application was filed on 24/1/08 at page 309 of the record seeking the following reliefs:
(1) Leave and order of this Honourable Tribunal permitting the Petitioner to bring this application outside pre-hearing session
(2) Leave and order of this Honourable Tribunal permitting the Petitioner to call Tiamiyu Adegboyega as additional witness and to file written deposition of the said Tiamiyu Adegboyega
(3) Leave and order of this Honourable Tribunal permitting the Petitioner to file the report of Tiamiyu Adegboyega.
The 1st & 2nd Respondents filed counter affidavits in which they contended that the grant of the application would be prejudicial to them because the proposed Witness statement was not front loaded as required by paragraph 1 (1) of the Practice Directions and that the grant of the application would “open the floodgates for endless litigation” as they may have to file similar applications. The lower Tribunal in its ruling on pages 340-342 dismissed the application on the ground that the Petitioner did not indicate that he was going to bring an application to call additional witness outside the pre-hearing session and has not shown extreme circumstance to warrant the grant of the leave sought. The lower Tribunal further held at page 341 lines 9-12 thus:
“Even if leave had been granted the Tribunal will still not be in a position to grant the other reliefs as the evidence as well as the documents sought to be brought in are legal conclusions, opinions and comments which are matters that lie within the province of the Tribunal and not the witness.”
Paragraph 4 sub paragraphs 5 & 6 of the Practice Directions empowers the Tribunal to grant the orders sought is satisfied that the Applicant has disclosed exceptional circumstances to warrant its grant outside the pre-hearing session.
The purpose of the Practice Direction is to complement the provisions of the Electoral Act by facilitating the expeditious hearing of election petitions. It is also to guide and regulate compliance with and observance of the provisions of the First Schedule to the Act and the Federal High Court Rules where applicable. See the cases of UNIVERSITY OF LAGOS V. AIGORO (1985) 11 S.C at 152; YUSUF V. OBASANJO (2003) 9-10 S.C at and ADAMS V. UMAR (2009) 5 N.W.L.R Part 1133 page 41 at 107. It makes the rules of Court more efficacious and helps to avoid absurdity in the application of the rules and keeps the wheel of Justice well greased to roll along smoothly.
In the instant case, the question is whether the Appellant in the circumstances of this case could have front loaded the additional witness statement sought to be filed? It is not in dispute that the order for the inspection of documents was made after the time prescribed by Section 141 of the Electoral Act for presenting a petition had lapsed. The order was granted for the purpose of enabling the Appellant to maintain her petition. There was no objection to the order being granted, it was averred in paragraphs 11, 14, 15, 16 and 19 of the affidavit in support of the application seeking for an order to call additional witness dated and filed on 24th January 2008 thus:
(11) That Tiamiyu Adegboyega the proposed additional witness participated in the inspection of election materials pursuant to the order granted to the Petitioner by this Honourable Tribunal. His proposed witness statement/written deposition is now ready. Now produced, shown to me and marked Exhibit A1 is the proposed witness statement.
(14) That the evidence in respect of which the additional witnesses are being called and the witness statement being filed relates to evidence which came to the knowledge of the Petitioner pursuant to the aforesaid order of the Tribunal and was not available at the time of presentation of the petition.
(15) That the report of the findings on physical inspection of the ballot papers and other election materials was recently completed on the 10th day of January 2008 due to the number of election materials inspected totaling about 71,000 ballot papers from 2 Local Governments in Osun state including other election materials Attached as Exhibit A2 is the said report of Tiamiyu Adegboyega
(16) As a legal practitioner, I know that the purport of the aforesaid order of this Honourable Tribunal is to enable the Petitioner to obtain evidence for the purpose of maintaining the petition which evidence were unavailable at the time of presentation of the petition and making of the order
(19) That the piece of evidence to be given by this additional witness and the written deposition of the already named witness will assist the Tribunal in the effective adjudication of the petition.
In my view, the above averments disclosed exceptional circumstances to warrant the exercise of the Court’s discretion in favour of the Applicant. It would be unreasonable to expect the Appellant to frontload a witness statement in respect of an order yet to be obtained and in respect of a report yet to be compiled. Having granted the application for inspection “for the purpose of maintaining the petition, the Tribunal’s refusal to allow the Appellant file the written deposition of the person who participated in the inspection, to file his report in respect of the said inspection and to allow the Appellant call Tiamiyu Adegboyega as an additional witness amounted to shutting out the Appellant who is making grave allegations that could sustain his petition. This is particularly so having regard to the fact that the grounds of the petition include allegations that the election was characterized by various electoral malpractices including snatching of ballot boxes and papers in different polling units of Aiyedade/Irewole/Isokan Federal Constituency in Osun State, multiple voting, over voting, lack of accreditation of voters in several polling units and voting without accreditation among others.
In the implementation of Practice Directions or rules of procedure, the paramount consideration of the Courts is to strive for the ideal of doing substantial justice rather than technical justice. In a situation where grave allegations are made by the other party as in the case at hand, Tribunals need not rely heavily on technicalities to the detriment of the serious issues needing scrutiny and determination. To shut up the party making allegation does much harm to the cause of justice. See OWUN V. I.N.E.C. (1999) 10 N.W.LR Part 622 at 201; ANOZIE VS. OBIOCHERE (2006) 8 N.W.L.R Part 981 at 140 and ABUBAKAR V. YAR’ADUA (2008) 1 S.C Part 11 page 77 at 122, the eminent jurist Niki Tobi J.S.C postulated thus:
“Gone are the days when Courts of law were only concerned with doing legalism. We are now in days when Courts of law do substantial justice in the light of prevailing circumstances of the case. It is my hope that the days of doing technical justice will not surfice again. And what is more, election petitions are sui generis and should be treated in that domain or realm.”
The Supreme Court affirmed the decision of the Court of Appeal granting leave to the applicants to call 213 additional witnesses and to file their witness statements. See also AREGBESOLA VS. OYINLOLA (2009) 14.N.W.L.fc Part 1162 page 429 ratio 20 where this Court held:
“The need to do substantial Justice is greater in an election petition cases than in any other cases. This is so because the Court is not only concerned with the rights of the parties inter se but also the larger interests and the rights of the people in the various local government areas who had exercised their franchise on Election Day.”
The lower Tribunal wrongly exercised its discretion in refusing to grant the application and thereby denied the Appellant his right to fair hearing guaranteed by Section 36 (1) of the 1999 Constitution and I so hold. Issue 3 is hereby resolved in favour of the Appellant.
Issue 4
Issue 4 also raises the issue of fair hearing. The undisputed facts are that the Appellant applied for and the lower Tribunal issued two subpoena duces tecum et and testificandum pursuant to Order 40 rule 34 of the Federal High Court (Civil Procedure) Rules on 10th December, 2007. See page 306 of the record of proceedings. It was addressed to the Resident Electoral Commissioner, I.N.E.C. Osogbo who was commanded to attend Court to give evidence on behalf of Chairman of the Tribunal at the instance of the Appellant, I align with the view of my learned brother Kekere-Ekun J.C.A in a similar situation in the case of ALHAJA AYO OMIDIRAN VS. ETTEH PATRICIA OLUBUNMI & 343 OTHERS unreported in CA/I/EPT/NA/95/08 that the Tribunal should not have shielded a witness on whom there was an order of Court to give evidence which was required to prove the Appellant’s case against the Respondents. See also BUHARI V. OBASANJO (2005) 1 N.W.L.R Part 941 at 1; OBI-ODU VS. DUKE (2006) 1 N.W.L.R Part 961 at 375 and LASUN VS. AWOYEMI (2009) 16 N.W.L.R Part 1168 page 513 at 549 paras D-H. From the foregoing, issue 4 is also resolved in favour of the Appellant.
The term “fair hearing” signifies a trial which is conducted according to dictate of legal principles and rules formulated to ensure that Justice is done to all the parties in a cause or matter. The Tribunal cannot be said to have obeyed the hallowed principles of natural justice, equity and good conscience in the conduct of the trial having disallowed the Appellant from calling witnesses that will assist him to maintain his petition against the Respondents and also preventing the representative of the Resident Electoral Commissioner to be sworn and give evidence in the petition for the Appellant. 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 the cases of ADIGUN v. A.G. OYO STATE (1997) 1 N.W.LR Part 53 at 678.
The trial conducted by the lower Court is therefore set aside for lack of fair hearing. In the prevailing circumstance, issues 1 & 2 would merely amount to an academic exercise.
Finally the appeal has merit and it succeeds. The Judgment of the Osun State Governorship and Legislative Houses Election Tribunal delivered on 30th June 2008 in petition No. NA/EPT/OS/8/07 is hereby set aside. It is hereby ordered back to the Osun State Governorship Tribunal for retrial on the merits. The petition shall be given accelerated hearing. Parties are to bear their respective costs.
STANLEY SHENKO ALAGOA. J.C.A.: I read before now the judgment just delivered by my learned brother Modupe Fasanmi, JCA. I agree that the trial by the Tribunal was vitiated by a lack of fair hearing. I therefore also allow the appeal and set aside the judgment of the Tribunal below. I abide by the order/s contained in the lead judgment and make no order as to costs.
SIDI DAUDA BAGE, J.C.A.: I real before now, the Judgment delivered by my learned brother, M. Fasanmi, J.C.A. The issues raised in the appeal have been dealt with in detail.
I agree with the reasoning and conclusion arrived at, that the matter be tried on its merits; this would enable the Tribunal look into the real complaints of the Petitioner concerning the election and return being challenged.
More so, I allow the appeal and abide with the consequential orders made in the lead judgment.
Appearances
Abiola OladeleFor Appellant
AND
A. A. Abimbola
Tewo Lamuye
Oluwole Kupoluyi
H. S. TsumbaFor Respondent
