OBED CHIJIOKE ACHILONU & ANOR v. UJU KINGSLEY CHIMA & ORS
(2019)LCN/13579(CA)
In The Court of Appeal of Nigeria
On Monday, the 17th day of June, 2019
CA/OW/EPT/HR/1/2019
JUSTICES:
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
1. OBED CHIJIOKE ACHILONU
2. PEOPLES DEMOCRATIC PARTY – Appellant(s)
AND
1. UJU KINGSLEY CHIMA
2. ACTION ALLIANCE
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)
RATIO
WHETHER OR NOT IT IS THE DATE A PROCESS IS FILED THAT IS IMPORTANT TO THE COURT AND NOT THE DATE THE PROCESS WAS PREPARED BY THE MAKER OR COUNSEL
Normally, in law, it is the date a process is filed, or sworn to, as evidenced by the endorsement of the assessment authority and/or the Commissioner for Oaths (in respect of Affidavit), that is of primary importance to the Court, not the date the process was prepared by the maker or Counsel. See the case of Ayodeji Vs Ajibola (2013) All FWLR (Pt.660) 132 at 1373; and the case of PML (Nig) Ltd Vs FRN (2017) LPELR 43480 SC- where it was stated: the law makes a clear distinction between the day a Court process is dated and the date same is filed the material date is the date of filing the process, not the date a party or legal practitioner appended on it See Eke Vs Ogbonda (2006)18 NWLR (Pt.1012) 505. Per Augie JSC.
I have said that the Records of Appeal is binding on the parties and the appellate Court, and so no person is allowed to wander outside it to hold a contrary view. See Garuba Vs Omokhodion (supra); Orok Vs Orok (2013) LPELR 20377 CA; Agbareh & Anor. Vs Mimirah & Ors (2008) LPELR 43211 SC; Host Sommer & Ors Vs F.H.A. (1992)1 NWLR (Pt.219) 548. PER MBABA, J.C.A.
WHETHER OR NOT A PARTY IS BARRED FROM CALLING A WITNESS HE CONSIDERS VITAL TO PRESENT HIS CASE
I do not think a party should be barred from calling a witness he considers vital, to present his case, as that would violate the cardinal principles of fair adjudication. In the case of Ayeleru Vs Adegbola & Ors (2010) LPELR 3828 CA, it was held: In the adjudication of any matter, the parties should be given every and full opportunity to present their cases and in so doing, to call witnesses that they consider vital to the prosecution of their cases. See also Audu Vs Guta (2004) NWLR (Pt.864) 463.”
Also in Aregbesola Vs Oyinlola (2009) 14 NWLR (Pt.1162)429 it was held that:
The need to do substantial justice is greater in election petition cases. This is because the Court is not only concerned with the rights of the parties inter se but also the larger interest and rights of the people in various Local Government Areas who had exercised their franchise on Election Day.
See also Abubakar Vs Yar’Adua (2008) All FWLR (Pt.404)1409 at 1450, where TOBI JSC (of blessed memory) said:
I am in entire agreement with the Court of Appeal when the Court held that full opportunity should be given to parties in the interest of justice without due regard to technicalities. Gone are the days when Courts of law were only concerned with doing technical and abstract justice based on and 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 the Court doing technical justice will not surface again. And what is more, election Petitions are sui generis and should be treated in that domain or realm. If Courts of law are bound to do substantial justice in ordinary civil matters, how much less in election matters I do not think that the Court of Appeal was wrong in giving one extra kilometer to accommodate the 4th to 808th Respondents. The Court did a good job and I commend the Justices. PER MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This Interlocutory Appeal arose from the decision of the National and State Houses of Assembly Election Tribunal, Owerri, Imo State in Petition No. EPT/NASS/HR/IM/16/2019, delivered on 6/5/2019, Coram: Hon. Justice Polycarb Kwahar (Chairman); Hon. Justice Mikailu Abdullahi (Member I) and Hon. Justice J.L. Okibe (Member II), wherein their Lordships struck out the motion, filed on 15/04/2019, by the Petitioners to call additional witnesses, to give evidence to the facts already pleaded, upon refusing the application.
Appellants, as Petitioners, had filed Petition on 16/3/19, to contest the declaration of the 1st Respondent (Uju Kingsley Chima) sponsored by the 2nd Respondent (Action Alliance) as the winner of the general Elections, held on 23/2/2019 to the House of Representatives seat, representing the Ohaji/Egbema, Oguta, Oru West Federal Constituency, Imo State. The 1st Appellant (Obed Chijoke Achilonu) was the candidate of the 2nd Appellant (Peoples Democratic Party) at the elections.
At the end of the Election, the 3rd Respondent (INEC) declared the 1st and 2nd Respondents as
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winners of the Election. That was on 25/2/19.
The Grounds of the Petition were that:
(1) 1st Respondent was not duly elected by majority of lawful votes cast at the election. Instead the 1st Petitioner was
(2) 1st Respondent was at the time of the election, not qualified to contest the election; that at the time of the election the 1st Respondent was a member of two Political parties and was sponsored to contest the election by two political parties, contrary the provisions of Section 65 (2)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The two Political parties being Action Alliance (2nd Respondent) and Democratic Alternative.
(3) The election is invalid by reason of corrupt practices and/or non-compliance with the provisions of the Electoral Act, 2010 (as Amended) and the non-compliance substantially affected the result of the election.
Appellant, therefore, sought the following reliefs from the Tribunal:
(i) A declaration that the 1st Respondent was not duly elected by majority of lawful votes cast at the election.
(ii) A declaration that the 1st Petitioner was validly
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elected or returned, having polled the highest number of lawful votes cast at the election.
(iii) An Order compelling the 3rd Respondent to issue a Certificate of Return to the 1st Petitioner.
OR, IN THE ALTERNATIVE:
(i) A declaration that the 1st Respondent, was at the time of the election, not qualified to contest the election.
(ii) An order nullifying the entire election in the Federal Constituency.
(iii) An order for a fresh election in the Constituency.
OR IN THE ALTERNATIVE (again):
(i) A declaration that the election in Ohaji/Egbema and Oguta Local Government Areas is invalid by reason of corrupt practices and/or non-compliance with the Provisions of the Electoral Act, 2010 (as amended) and the non-compliance substantially affected the results of the election.
ii) An Order nullifying the election in the two Local Government Areas.
iii) An Order for fresh election in the two Local Government Areas. (See pages 3,4,4,8, 9 of the Records of Appeal)
Appellants filed a motion on 15/4/2019, seeking the following reliefs:
1) An Order granting leave to the Petitioners
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Appellants to call (1) Chukwudi Ukor; (2) Otiah Martins; (3) Eburuam Ifeanyi; (4) Obiefule Nwauwa; (5) EbereNwauwa (6) Ochiagha Sunday; (7) Nwosu J; (8) Chigozie Ezeocha; and (9), the 3rd Respondent as additional witnesses in this Petition.
2) An Order, deeming the depositions on oath of the additional witnesses already filed and served, as being properly filed and served.
3) An Order granting leave to the petitioners/Applicants to serve Civil Summons for witness requiring subpoena (Form 1 (A) on the 3rd Respondent.
4) An Order deeming the said Civil Summons for witness Requiring subpoena (Form 1 A), already filed and served on the 3rd Respondent as being properly filed and served.
5) An Order granting leave to the Petitioner Applicants to amend their list of witnesses and list of Documents, as underlined in the Proposed Amended List of witnesses and proposed Amended list of Documents, attached to the affidavit in support of this application and marked as Exhibits A and B respectively.
6) An Order deeming the Amended List of witnesses and Amended List of Documents already filed and served, as being properly
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filed and served.
7) Any further or other orders as this Honourable Tribunal may deem fit to make in the circumstances.
The Grounds of which Appellants predicated the motion were that:
i) The 1st to 5th proposed new witnesses are needed to give evidence with respect to ground 3 of the petition.
ii) The depositions on oath of the above witnesses did not accompany the Petition because they were not available at the time of filing the instant Petition.
iii) The 3rd Respondent is needed to give, evidence because it is the maker or custodian of most of the documents that the Petitioners are relying on at the hearing of the instant Petition.
iv) The depositions on oath of the 3rd Respondent did not accompany the petition because subpoena is required for its attendance.
v) Civil summons for Witness Requiring Subpoena (Form 1 (A) was not served with the Petition on the 3rd Respondent.
vi) The Petitioners pleaded some documents in paragraph 26 of their Petition, but inadvertently omitted them from the List of Documents.
vii) The Petitioners did not attach copies of the documents to be relied on at the
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hearing of the instant Petition; they only listed the documents. See pages 58 to 60 of the Record of Appeal.
Appellants also filed an affidavit, in line with the facts disclosed in the above grounds, and said that the said new witnesses they intended to bring were not available at the time of filing the Petition, but were needed to give evidence in respect of the facts pleaded in the petition; that the Respondents would not be prejudiced by the Application and that the interest of Justice required the grant of the Application (pages 62 to 64 of the Records).
The 1st and 2nd Respondents had filed counter-Affidavits to oppose the application (Pages 100 to 102 and 111 to 114 of the Records of Appeal, respectively). The 3rd Respondent too filed a counter affidavit, as per pages 126 to 127 of the Records, while the Appellants filed a further affidavit in support (pages 128 to 131 and 137 to 140 of the Records).
The parties filed written addresses, and upon hearing the motion and considering the affidavit evidence and addresses of Counsel, the Tribunal refused the application and dismissed it, as follows: We have carefully
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read the election petition. It was filed on the 16th day of March, 2019, while the statement sought to be let in by the Applicants/Petitioners, were filed a day earlier. It therefore baffles the Tribunal when the Petitioners/Applicants stated in paragraph 3 (iii) thus:
That the depositions on oath of the above witnesses did not accompany the petition because they were not available at the time of filing the petition.”
This paragraph in the affidavit contradicts the date in the witness statements on Oath which are being sought to be let in by the Applicants/petitioners. The implication of the above averment in the Petitioners/Applicants affidavit is that these witnesses were not available at the time of filing the petition, thus making it impossible to accompany their statements with the petition as mandatorily required by paragraph 4(i), (5) (a)(b) and (c) of the 1st Schedule to the Electoral Act, 2010 (as amended). See also the case of Chief Oke Vs Dr. R. O. Mimiko NO1. (supra) 225 at 263 where the Supreme Court held: By paragraph 4(1) and 5 of the 1st Schedule to the Electoral Act, a composition analysis of contents of an
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election petition has been spelt out and also a list of materials which must be accompanied. The use of the word shall in the sub sections is very instructive, mandatory and conclusive.
However, in this case, the true position as per the date the witness statements sought to be deemed properly filed and served shows that the witnesses were available on the 15/3/2019 and each of them swore to their witness statements on oath on the said date, it will therefore be a paradox for the Appellants/Petitioners to seem to be stating the contrary at this stage. The witness statements now sought to be deemed properly filed and served ought to have being filed along with the petition on the 15/3/2019. Failure to so do is fatal to the petitioners/Applicants case.
The Tribunal is aware of the settled law that election petition are sui-generis and must be so treated. In the case Sa’ad & Anor. Vs Maifata & Ors. (2008) LPELR 4915 CA, p.17, paras A-D, the Court of Appeal held: It is trite that election petitions have certain peculiar features which make them sui generis. They stand alone, on their own and bound by their distinct set of
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rules under the law. Such relevant rules are invariably issued in mandatory terms. Consequently, defaults, or irregularities which are readily pardonable and are not sufficient to adversely affect the competence of the claim in other proceedings do not enjoy similar kid glove treatment in election petitions. The jurisdiction of the Tribunal which hears the petition is also of a special category.
Thus, a slight default in complying with a procedural step could result in irredeemable and fatal consequence for the petition or petitioner.
It is in the light of the above that the cases of Okwueze Vs Ejiofor (2000)15 NWLR (Pt.690) 389 and Daggash Vs. Bulama (2004)14 NWLR (Pt.892) 144, referred to by the Petitioners/Applicants are inapplicable in this application.
On the issue of a person other than the party involved swearing to an affidavit on behalf of the other party, such position can only be sustained where the deponent show that he has the authority or consent of the other party. The argument that 1st and 2nd Respondents had same interest is unacceptable. We, to this extent, agree with the Petitioners/Applicants Counsel that the
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deponent did not slow that the consent of the 1st Respondent was secured in deposing to the affidavit. The affidavit is therefore defective.
Nevertheless, since the main application has failed, we do not intend to make any specific orders as to whether or not the entire affidavit should be struck out, because the entire application would not have seen the light of the day, even without a counter-affidavit, having offended paragraph 14 of the 1st Schedule to the Election Act, and therefore dead on arrival. The application seeking to call additional witnesses in EPT/NASS/HR/16/2019 is over-reaching and a surreptitious way to amend the petition, contrary to paragraph 14 to the 1st Schedule to the Electoral Act 2010 (as amended). The application fails and is dismissed.
That is the Ruling Appellants appealed against, as per their Notice of Appeal on pages 153 to 158 of the Records, with 4 grounds of Appeal. Appellants filed their Brief on 27/5/19 and 2 Reply Briefs on 6/6/19 (to 1st Respondent) and 7/6/19 (to 2nd Respondent), respectively. They distilled 4(four) issues for the determination of the Appeal, as follows:
1) Whether the lower
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Tribunal was right when it held that paragraph 14(2) (a) of the 1st Schedule to the Electoral Act is tightly married to paragraph 4(1) and (5) of the 1st Schedule to the Electoral Act and the Application sought by the Appellants is manifestly showing an intention to introduce new or fresh facts that will alter or amend the Petition thereby over-reaching the Respondents (Ground one).
2) Whether the lower Tribunal did not misdirect itself or reached (sic) a wrong decision when its held that the Appellants witnesses statements on oath and civil Summons to INEC Commissioner, Imo State requiring subpoena sought to be deemed properly filed and served were filed on 15/03/2019 being a day before the petition was filed instead of the actual date 15/04/2019 they were sworn and filed. (Ground 2)
3) Whether the failure of the lower Tribunal to allow the Appellants call additional witnesses in support of facts pleaded in the Petition does not breach the Appellants Constitutionally guaranteed right to fair hearing, when it held that the witnesses were available on 15/03/2019 and each of them swore to their witnesses statements on oath on the said date
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(Ground 3)
4) Whether the case of Chief Alex Olusola Oke and Anor. Vs Dr. Rahman Olusegun Mimiko & Ors relied upon by the lower Tribunal to dismiss the Appellants Application is on all fours with the instant case (Ground 4).
The 1st Respondent filed his brief of argument on 31/5/2019 and donated only one issue for the determination of the appeal, as follows:
Whether the Tribunal was in error when it dismissed the Appellants application on the ground that it was over-reaching and a surreptitious way to amend the petition.
The 1st Respondent also filed an affidavit of 18 paragraphs with exhibits, challenging the Records of Appeal, to the effect that:
The proposed written statements on oath marked Exhibits 1A, 1B, 1C and 1D (in the affidavit) were shown to have been sworn at the Election Tribunal Registry, Owerri, this 5th day of March, 2019; that It was on the basis of the date of the swearing of the said exhibits that the 1st Respondents Counter affidavit and written address urged the Tribunal to hold that those
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documents were available to the Appellants, as petitioners, at the time they filed their petitions on 16/3/2019 That the Tribunal, in its ruling, delivered on 6/5/19, agreed with the fact that those documents were shown to have been filed on the 15th day of March, 2019, as shown on page 151 of the record of appeal that (now in the) proposed written statements on oath of the four persons mentioned in paragraph 9 of this affidavit the word March in each of them at pages 85, 87, 89 and 91 of the record of appeal, has been cancelled and a scribble made on top; there is no such thing in exhibits 1A, 1B, 1C and 1D.”
The 1st Respondent therefore asserted that what is in the record of appeal, in this regard, is different from what was served on him (1st Respondent), through the law office of 1st Respondents Counsel, and contrary to the findings of the Tribunal.
Appellants had filed a counter affidavit on 6/6/19, wherein a Senior Litigation Secretary in the Law Firm of L.D.A. Awazieama & Co, Happiness Ohadiro, female, said (among other things):
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3(iii) That paragraphs 5 and 6 of the said affidavit it in respect of the Record of Appeal are admitted and adopts them as our evidence in respect of this appeal.
3(iv) That the said paragraphs 5 and 6 of the 1st Respondents affidavit in respect of the Record of Appeal have answered all the questions as to when the 8 (eight) proposed additional witnesses statements on oath were filed.
The paragraphs 5 and 6 of the Affidavit of the 1st Respondent which Appellants admitted, stated as follows:
(5) In particular, I have read the motion on notice dated 12/4/2019 and filed on 15/4/19 by the Appellants, who are the petitioners at the Tribunal.
(6) The motion on notice which sought leave of the Tribunal to call additional witnesses was accompanied by a set of eight proposed written statements on oath, though they were filed same day, separately; they were all served on the law firm, on 23/4/2019.
I think there should be no controversy about the dates on the proposed statements of the proposed additional witnesses, which Appellants sought the leave of the Tribunal to use, as available authentic evidence
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showed the said statements were deposed to on 15/4/19 by the deponents, as can be seen on the faces of the documents, as per the date of the swearing-in of the documents, and endorsement by the Commissioner for oath and official stamp of the Tribunal See pages 77, 79, 81, 83, 85, 87, 89 and 91 of the Records. The fact that on some of the documents, particularly, pages 77, 85, 81, 87 and 91, March was cancelled and April written with ink, cannot, in my opinion, distort or confuse the clear evidence that the documents were sworn to on 15/4/19.
It would therefore, be mischievous, in my view, to argue that the Records of Appeal was tampered with or falsified by reason of the cancellation of March and writing of April on the said statements of the said proposed new witnesses. It does not also appear probable or legally possible that a document deposed to (or sworn) on the 15th March, 2019 would carry the endorsement of the Commissioner for Oath, clearly stated to have been done and stamped on 15/4/2019, when the motion, carrying and projecting the said documents, was also filed. (And the
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affidavit supporting the motion was also endorsed on the said date 15/4/19). It should therefore be obvious, that even if the Appellants omitted to cancel the word March and wrote April at the point of endorsement by the Commissioner for Oath, it would still have been clear and understood, that March was a common mistake, that would not go to the roots of the merit of the motion. Good enough, there was cancellation of the word March in favour of April See the case of Nyako Vs Adamawa State House of Assembly & Ors (2016) LPELR 41822 SC; and Dangote General Textile Products Ltd Vs H.A. (Nig) Ltd (2013) 16 NWLR (Pt.1379) 60 at 90, where the Supreme Court held:
The Courts deciding rights of parties are to do justice and not punish them for mistakes they make. The failure to abide by the Rules is clearly a mistake of Counsel and which should not be visited on the clients as it will only occasion injustice. Per Ogunbiyi JSC.
The 2nd and 3rd Respondents had also filed Briefs, both on 3/6/19, and 2nd Respondents brief was deemed duly filed on
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6/6/19. The 2nd Respondent adopted the single issue, distilled by the 1st Respondent, while the 3rd Respondent adopted the Issues as distilled by the Appellants. I have earlier stated that Appellants had filed a Reply to the 2nd Respondents Brief.
Arguing the Appeal, on 10/6/19, Appellants Counsel, Leo Degreat Awazieama Esq., (who settled the brief) on Issue one, submitted that the lower Tribunal was not right when it held that Paragraph 14(2) (a) of the 1st Schedule to the Electoral Act is tightly married to Paragraph 4(1) & (5) of the 1st Schedule to the Electoral Act, and that the Application sought by the Appellant was manifestly showing an intention to introduce new or fresh facts that will alter or amend the petition thereby over-reaching the Respondents.
Counsel relied on the case of Dangana Vs Usman (2012) ALL FWLR (Pt.627) 612 at 640 on how to interpret words in the Constitution or statute, that: Where the words of a statute are clear, unambiguous and unequivocally express the intention of the law makers, effect must be given to them irrespective of whether that produces a harsh or inconvenient
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result. Per Adekeye JSC.
Counsel cited the Paragraph 14(1) and (2) of the 1st Schedule to the Electoral Act, 2010 (as amended) to say that amendment of the process is permitted under Paragraph 14(2) of the 1st Schedule, provided the amendment does not conflict or contradict the condition laid down in the said Paragraph 14(2) of the 1st Schedule. He relied on Uchiv Vs Sabo (2016) NWLR (Pt.1538) 264. He argued that Appellants application (pages 58, 61 of the Records) did not intend to change the character of the Petition or conflict or contradict the condition laid down in Paragraph 14(2) of the 1st Schedule, since the proposed evidence of the INEC (to be subpoenaed) and others (8 witnesses) merely sought to support the facts that had already been laid down in the Petition as foundation upon which the proposed evidence intended to be built. Counsel referred us to paragraphs 1, 5, 24 (i) (ii) (iii) (iv) (v) (vi), 27 and 30 of the Petition, to show the facts pleaded which Appellants needed the witnesses sought, to testify on; he said that no new facts were sought to be introduced and that the Lower Tribunal also failed to identify the
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alleged new facts sought to be introduced.
Counsel called us to have a closer look at the motion filed on 15/04/19 for leave to call additional witnesses, to see that no new fact, whatsoever, was intended. He relied on PDP Vs Edem (2016) 12 NWLR (Pt.1525) at 106. He said that it was wrong for the Tribunal to import Subparagraph 5 of Paragraph 4 of the 1st Schedule to the Electoral Act, into the process, alleging a tight nexus with paragraph 14(1) and (2) of 1st Schedule.
He argued that going by PDP Vs Edem (supra) denying Appellant the opportunity to call evidence to support their case would amount to denial of fair hearing. Counsel relied also on the case of PDP Vs Edem (supra) which said:
It is clear that the statute in issue (paragraph 4(5) of the 1st Schedule) makes a clear distinction between the Petition and what accompanies it, the pleading and evidence to establish it.
He said it defeats the essence of justice, where a party is allowed necessary opportunity to discover evidence to conduct his case, but prevented from presenting the evidence gathered; that that is injustice; that the Tribunal imported the
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Paragraph 4(5) of the 1st Schedule, wrongly, while considering the Paragraph 14(1) (2) of the 1st Schedule; he said that Paragraph 4(5) is just accompanying documents and can never change the character or introduce new facts in the Petition. He urged us to resolve the issue for Appellants.
On Issue 2, whether the Tribunal did not misdirect itself or reach a wrong decision, when it held that the Witnesses Statements on Oath and Civil Summons to INEC REC requiring subpoena sought to be deemed, were filed on 15/3/19 (instead of 15/4/19 they were sworn and filed), Counsel answered in the affirmative. He relied on the case of Ayodeji V Ajibola (2013) ALL FWLR (Pt.660) 1322, to say that it is trite law that it is the date affixed by the Commissioner of Oaths, as the date of administering the oath/affirmation, that is important to the law, not the date the deponent fixed on the document, as the date he prepared the document before presenting it before the Commissioner of Oath for the administration of oath/affirmation. Counsel asserted that additional statements on which oath Appellants sought to use, were sworn to and filed on 15/4/19 (pages 76, 91 of the
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Records); that the Respondents were wrong to say that the said statements on oath were filed a day before the petition was filed; he said that Tribunal, surprisingly, believed the Respondents, and even refused to look at the date stamped on the documents by the Secretary of the Tribunal, who was also the Commissioner of Oath! Counsel relied on paragraphs 12 to 14 of the Further Affidavit of Appellants on pages 128, 134 and 137, 140 of the Records, and said that that was a great misapprehension of the facts by the Tribunal, which occasioned a miscarriage of justice; that the Tribunal was wrong to hold that the proposed statements on oath were available on 15/3/19 and that they were sworn to on that date!
On Issue 3, Counsel said failure of the Tribunal to allow Appellants to call additional witnesses in the circumstances, to support facts already pleaded, would breach Appellants constitutional right to fair hearing; especially as the Tribunal wrongly held that the said statements on oath of the Additional Witness were deposed to on 15/3/19, before the petition was filed! Counsel relied on Section 36 of the 1999 Constitution and the
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case of Amadi Vs NNPC (2000) 10 NWLR (Pt.674) 76; Aregbesola Vs Oyinola (2009) 14 NWLR (Pt.1162) 429; Ayeleru Vs Adegbola & Ors (2010) LPELR 3828 CA, on the fundamental place of fair hearing in adjudication, and that failure to observe it is fatal. He also relied onAbubakar Vs Yar’Adua (2008) 11 SC (Pt.11) 77 at 122; (2008) ALL FWLR (Pt.404) 1409 at 1450; A.G. Rivers Vs Ude (2006) 17 NWLR (Pt.1008) 436 at 456; Lasun Vs Awoyemi (2009) 16 NWLR (Pt.1168) 513.
Counsel also relied on Paulinus C. Ngoka Vs Philip Ifezue & Ors (2016) LPELR 41312 CA, where my Lord, Agbo JCA said:
Pleading can never graduate to evidence and pleaded fact on which no evidence is led is deemed abandoned, unless admitted in clear terms.
Thus, he said since Appellants had pleaded in paragraphs 1 to 5, 24 and 27 of their Petition relevant facts, it will be against the interest of justice to refuse them opportunity to call witnesses in support of those pleaded facts.
On Issue 4, whether the case of Oke & Anor Vs Mimiko & Ors relied on by the Tribunal to dismiss Appellants application is on all fours with the instant case,
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Appellants answered in the negative and said that it is the case of PDP Vs Edem (2016) 12 NWLR (Pt.1525) 106 that is rather on all fours with this case. Counsel said in the case of Oke Vs Mimiko (supra), the first ground among the others, for bringing the application was: That some of the documents and other relevant facts needed in proof of the Petition were not available at the time of filing (the Petition). Counsel said that that showed Appellant intended to introduce fresh facts, which would violate Paragraph 4(1) and 14(1) (2) of the 1st Schedule. But in this case at hand, Counsel said no new or fresh fact was intended, to be introduced. Rather Appellants wanted to call witnesses to lead evidence on facts already pleaded.
He urged us to resolve the issues for Appellants and allow the appeal.
Responding, 1st Respondents Counsel, O.G. Adindu, who settled the brief, submitted on the sole Issue, that the Tribunal was correct when it dismissed Appellants application on the ground that it was over-reaching, and a surreptitious way to amend the petition.
Counsel picked quarrel with some depositions in the supporting
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affidavit to the motion, same that no reference, whatsoever, was made to three of the proposed witnesses mentioned in subparagraph (1) of the same paragraph 3 of the affidavit, namely Ochiagha Sunday, Nwosu J., and Chigozie Ezeocha; that unlike the other five proposed witnesses, who evidence, according to the deposition, would be needed with respect to ground 3 of the Petition, nothing was said about the relevance of the proposed evidence of the said three persons. (See paragraphs 3.06 and 3.07 of the Brief). Talking about the said named three proposed witnesses, Counsel for 1st Respondent said the trial Tribunal was right to refuse the application.
He said further that the Tribunal was right to hold that the application manifested an intention to adduce new or fresh facts that would alter or amend the petition, thereby over-reaching the Respondents. He called our attention to the pleading on the first ground of the application, whereof the 5 proposed witnesses were needed to give evidence with respect to the 3rd ground of the Petition which said:
The election is invalid by reason of corrupt practices and/or
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non-compliance with the provisions of the Electoral Act, 2010 (as amended), and the non-compliance substantially affected the results of the election.
Counsel said Petitioners are expected to plead clear facts and give evidence in proof of the facts that substantiate the ground (relying on paragraph 4(1) (5) of the 1st Schedule to the Electoral Act). He argued that it is, logically, incongruous for a petitioner to state that he is giving evidence with respect to a ground of a petition. Rather, he should give evidence in proof of the facts in support of a ground of the petition. He added that it was necessary to go beyond the ground of the Petition and examine the averments in support of the ground, vis-??-vis, the proposed witness statements on oath of the proposed witnesses; that the outcome of such exercise should determine whether the proposed evidence tends to add to or amend the contents of the Petition, and therefore conclude whether the Tribunal was right or not in its decision.
Counsel tried to analyze the proposed statements on oath of proposed witnesses as relate to the grounds of the Petition, and concluded that the statements
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by Eburuam Ifeanyi, Ochiagha Sunday and Chigozie Ezeocha did not relate to the averments in the Petition; thus he said that the Tribunal was not wrong to refuse them to testify. Ditto the other proposed statements of the other proposed witnesses (which Counsel analyzed as to their merits or usefulness in proof of the grounds of the Petition) and he concluded that the trial Tribunal was right to refuse them leave to be called to testify.
Counsel stressed that Appellant was not correct to say that the proposed evidence of the prospective witnesses did not intend to introduce new or fresh facts in the Petition. He said that the Tribunal had held that they intended to adduce new or fresh facts that would alter or amend the Petition, and that we should affirm that decision. He relied on the case of Oke Vs Mimiko (supra) and added that the decision and observation by Oyewole JCA in PDP Vs Edem (supra) had no relationship whatsoever with this aspect of the appeal. Counsel reiterated that the main thrust of the decision of the Tribunal was that the Petitioners wanted to introduce new facts in the petition by the proposed additional statements of witnesses, or to
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amend the Petition, indirectly; that the time for amendment had passed and that the application, if granted, would over-reach the Respondents. He urged us to affirm that decision, and relied on Oke Vs Mimiko (supra).
Counsel added that the Tribunal was right to hold that the statements on oath, which Appellants sought to use were filed or deposed on 15/3/19 (not 15/4/19), therefore they ought to have been filed with the Petition on 16/3/19! Thus, Counsel said the Tribunal was right to rely on that deduction and apply it in the decision. He specifically urged us to strike out the Appellants argument on the alleged refusal of the Tribunal to grant their application in respect of the 3rd Respondent, wherever it appears in the Appellants Brief of Argument, saying that in formulating the Issue 2 in the Brief, Appellants went beyond the scope of ground 2 and added And Civil Summons to INEC Commissioner Imo State, requiring subpoena thereby giving themselves the leeway to proffer argument on civil summons.
He urged us to resolve the Issue against Appellant and dismiss the Appeal, adding that the decision of the Tribunal did not
27
infringe Appellants right to fair hearing.
The 2nd Respondents brief, settled by Dr. Ikenna Ihezuo, argued whether the application was grantable by the Tribunal, in the light of the Paragraph 14(2) (a) of the 1st Schedule to the Electoral Act, 2010, as amended, which allows no amendment, once the allowed time for filing Election Petition, elapses. He answered in the negative and added that the Paragraph 4(1) of the 1st Schedule is tightly married to Paragraph 14(1) (2)(a) of the 1st Schedule and that Paragraph 5, which has the same, connection with Paragraphs 14(1) 2(a) (ii), is clear way of introducing new or fresh facts that will alter or change the Petition thereby over-reaching the Respondents; he said that that cannot be allowed. He relied on Oke Vs Mimiko (supra).
Counsel also said that the main reason for the Appellants application calling for additional witnesses was: that the deposition on oath of the above witnesses did not accompany the Petition, because they were not available at the time of filing the Petition. He argued that a perusal of the Petition filed on 16/3/19 shows the witnesses sought to be
28
called were available and signed deposition on 15/3/19, he said that the consequences therefore is that the deposition is false, as the Tribunal also stated. He also said that credibility of the deponent is put to question, when it is shown that the purported depositions of Ochiagha Sunday, Nwosu J. and Chigozie Ezeocha as attached to the application, were contrary to the deposition in the affidavit.
Counsel urged us to affirm the decision of the Tribunal dismissing the Appellants application; that the application manifested an intention to adduce new or fresh facts that would alter or amend the petition, and consequently over-reach the Respondents.
Counsel for the 3rd Respondent, J.M.E. Onyenakazi Esq., made submission in line with 1st and 2nd Respondents. He relied on the case of PDP Vs Edem (supra) to say that unless it would result in absurdity, words in a statute are to be given their ordinary grammatical meaning. He said that the Tribunal did not interpret the provisions of the Electoral Act in isolation, but rather took a community reading of the provisions and married it together, to arrive at a just decision in the
29
matter. He relied on various authorities, including Emeka Vs Emodi & Ors (2004) 16 NWLR (Pt. 900) 433 on the power of Court to allow amendment of petition, only within 21 days of filing petition, not afterwards. He urged us to resolve the Issues against Appellants.
In his Reply Brief to 1st Respondents Brief, Appellants observed that 1st Respondent said the Tribunal dismissed the application in respect of the 3 (named) witnesses, but therefore admitted that the proposed witnesses depositions of the other witnesses (5 of them) were specific and traceable to the Petition. Appellants them wondered why the trial Tribunal did not allow the others (5 Witnesses) to be called to testify! He said that the Tribunal did not dismiss the Application based on the analysis made by 1st Respondent Counsel. He made other arguments rehashing the brief that the Tribunal did not peruse the documents to appreciate that the proposed statements on oath were sworn on 15/4/19, as per the endorsement of the Commissioner of Oath. He said it is trite law that the Court is bound by the Records of Appeal.Garuba Vs Omokhodion (2011) 6 SCNJ 334; Sapo Vs Sunmonu (2010) 5 SCNJ 1;
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Leaders of Company Ltd & Anor Vs Bamaiyi (2010) LPELR 1771 SC.
Counsel observed again that the Tribunal had earlier made an order for the production of certain documents by the 3rd Respondent to the Petitioners, after the institution of the ease, and said that the application was also meant to subpoena 3rd Respondent official(s) to give such evidence. He relied on Section 151(1) (2) of the Electoral Act , and the case of Aderemi Olatunde Ayeleru Vs Mukaila Adegbola & Ors, Aregbesola Vs Oyinola (2009) 14 NWLR (Pt.1162) 429 at 448.
On the Reply to 2nd Respondents Brief, Appellants said that calling additional witnesses does not infringe on paragraphs 4(1) and 14(1) (2) of the 1st Schedule to the Electoral Act.
RESOLUTION OF THE ISSUES
Appellants had distilled 4 Issues for the determination of this Appeal, which were summarized by the 1st and 2nd Respondents into one Whether the Tribunal was in error when it dismissed the Appellants application on the ground that it was over-reaching, and a way of amending their Petition.
I shall adopt the said single Issue by the Respondent, which I think, properly
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summarized the 4 Issues formulated by the Appellants. I also think the issues as to whether the Paragraphs 4(1) (5) and 14(1) (2) of the 1st Schedule to the Electoral Act, 2010 (as amended) were properly handled by the Trial Tribunal, and whether the Tribunal properly appraised the evidence with regards to the date the proposed statements on oath, sought to be relied on, were sworn to, can also be considered under the said single Issue for determination.
I had earlier held that the Learned Tribunal was wrong to assume and hold, as follows: the true position as per the date the witness statements sought to be deemed properly filed and served shows that the witnesses were available on 15/3/2019 and each of them swore to their witness statements on oath on the said date, it will therefore be a paradox for the Applicants/Petitioners to seem to be stating the contrary at this stage. The witness statements now sought to be deemed properly filed and served ought to have been filed along with the Petition on the 15/3/2019. Failure to do so is fatal to the Petitioner/Applicants case. (Page 151 of the Records of
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Appeal).
It should be noted that the Petition was filed on 16/3/19 (not 15/3/19), but it was prepared by Petitioners Counsel on 15/3/19. At the filing of the Petition on 16/3/19, Appellants (as Petitioners) had listed the witnesses they intended to call to testify 17 of them, and their brief statements on oath were all sworn to on 16/3/19. (Pages 12 to 54 of the Records). The Tribunal therefore goofed on the dates.
Appellants motion, seeking leave to call 8 additional witnesses, filed on 15/4/2019, was not an application to amend the Petition, and the proposed statements on oath of the prospective additional witnesses were filed along with the Motion on the said 15/4/19, when the processes were assessed and the affidavit in support sworn to by the deponents and endorsed by the Commissioner for Oaths (including the proposed statements sought to be deemed and relied on the Appellants). See pages 58 to 91 of the Records. Normally, in law, it is the date a process is filed, or sworn to, as evidenced by the endorsement of the assessment authority and/or the Commissioner for Oaths (in respect of Affidavit), that is of
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primary importance to the Court, not the date the process was prepared by the maker or Counsel. See the case of Ayodeji Vs Ajibola (2013) All FWLR (Pt.660) 132 at 1373; and the case of PML (Nig) Ltd Vs FRN (2017) LPELR 43480 SC- where it was stated: the law makes a clear distinction between the day a Court process is dated and the date same is filed the material date is the date of filing the process, not the date a party or legal practitioner appended on it See Eke Vs Ogbonda (2006)18 NWLR (Pt.1012) 505. Per Augie JSC.
I have said that the Records of Appeal is binding on the parties and the appellate Court, and so no person is allowed to wander outside it to hold a contrary view. See Garuba Vs Omokhodion (supra); Orok Vs Orok (2013) LPELR 20377 CA; Agbareh & Anor. Vs Mimirah & Ors (2008) LPELR 43211 SC; Host Sommer & Ors Vs F.H.A. (1992)1 NWLR (Pt.219) 548.
It is obvious that the wrong conclusion of the Tribunal that the proposed additional statements of the witnesses sought to be deemed, were available on 15/3/19 (a day to the filing of the Petition) had misled the Tribunal to hold
34
that Appellants should have filed the same along with the Petition, and that seeking to use same now, would be seeking to amend the Petition, surreptitiously, or to introduce new/fresh evidence. The Tribunal said:
It therefore baffles the Tribunal, when the Petitioners/Applicants stated in paragraph 3(iii) (of the affidavit in support of the Application) thus:
That the depositions on oath of the above witness did not accompany the Petition, because they were not available at the time of filing the Petition.
This paragraph of the affidavit contradicts the date in the witness statements on oath which are being sought to be let in by the Application/Petitioners. The implication of the above averment in the Petitioners/Applicants affidavit is that these witnesses were not available at the time of filing the Petition, thus it impossible to accompany their statements with the Petition as mandatorily required by paragraph 4 (1), (5) (a) and (c) of the 1st Schedule to the Electoral Act, 2010 (as amended) See Chief Oke Vs Dr. Mimiko No1. (supra).
However, in this case, the true position as per the witness statements sought to be
35
deemed properly filed and served shows that the witnesses were available on the 15/3/19 and each of them swore to their witness statements on oath on the said date, it will therefore be a paradox for the Petitioners/Applicants to seem to be stating the contrary at this stage. The witness statements now sought to be deemed properly filed and served ought to have being (sic) filed along with the Petition on 15/3/19. Failure to so do is fatal to the Petitioners/Applicants case. (Pages 150, 152 of the Records).
Was the Application by Appellants an attempt to introduce new or fresh facts to the Petition and/or a surreptitious moves to amend the Petition, contrary to Paragraph 14(1) (2) and Paragraph 4(1), (5) of the 1st Schedule to the Electoral Act 2010 (as amended)?
In the Motion, Appellants sought leave to call additional witnesses and leave to amend the list of witnesses, to include the anticipated new/additional witnesses, and to deem their statements on oath already filed to be duly done. They also sought leave to serve civil summons for witness requiring subpoena Form 1(A) on the 3rd Respondent (I take that to mean
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application to issue witness summons, to subpoena the 3rd Respondents official to testify for Appellants at the trial). (See pages 58, 59 of the Records).
The Application was predicated on Paragraphs 47 and 54 of the 1st Schedule to the Electoral Act, which allow such applications to be raised at the pre-trial session and permits reliance on procedure, similar to (and as nearly as possible) Federal High Court/Civil Rules, or on the said Rules of Court with necessary modifications (as may be necessary) to render them applicable, having regards to the Electoral Act.
Paragraph 4 (1) of the 1st Schedule to the Electoral Act provides for the contents of an election Petition, while Paragraph 4 (5)(1) states the documents that should accompany election petition, namely:
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.
Subparagraph 5(ii) of the paragraph 4 of the 1st Schedule says:
A petition which fails to comply with Subparagraph (1)
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of this paragraph shall not be accepted for filing by the secretary.
Paragraph 14(1) (2) of the 1st Schedule provides for the circumstances and the applicable Rules of Court for amendment of election Petition or Reply, thus:
14 (2) After the expiration of the time limited by:-
a) Section 134 (1) of this Act for presenting the election petition, no amendment shall be made:
i) Introducing any of the requirements of Subparagraph (1) of Paragraph 4 of this Schedule, not contained in the original Election Petition filed, or
ii) effecting a substantial alteration of the grounds for, or the prayer in the election petition, or
iii) except anything which may be one under the provisions of Subparagraph 3 of this paragrapheffecting a substantial alteration of or addition to the statement of facts relied on to support the ground for, or sustain the prayer in the election petition, and
i) Paragraph 12 of the Schedule for filing reply, no amendment shall be made-
i) …
ii) …
Section 134 of the Electoral Act 2010 has been deleted. Thus, it does not appear there is any more limitation of time
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to bring application to amend a petition or the requirements of Subparagraph (1) of Paragraph 14 of the 1st Schedule to the Electoral Act, except where Applicant, seeks to alter substantially or to introduce new requirements there-under not contained in the original petition, filed. While the Section 134(1) was part of the Electoral Act, it provided for a limited period of 21 days within which to seek amendment of a Petition.
In the case of Oke Vs Mimiko (supra) it was stated that Section 134(1) of the Electoral Act is now part of the Constitution. It is therefore obvious that there is no bar, in my opinion, to grant of leave to a Petitioner to call additional witnesses required in proof of his Petition, where such application does not require (or amount to) Substantial alteration of the ground for or prayer in the election Petition, or to:
effecting a substantial alteration of or addition to the statement of fact relied on to support the ground for, or sustain the prayer in the election Petition.”
I think the case of Chief Oke Vs Dr. Mimiko (No.1) (2014)1 NWLR (Pt.1388)253 is relevant to the interpretation of
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amendment of Petition, with regards to paragraph 4(1) (5) and paragraph 14 (1) (2) of the 1st Schedule to the Electoral Act 2010, as amended. In that case, (as argued by the 1st Respondent) at the election Tribunal, after exchange of pleadings, Applicant sought extension of time to filed and use additional or further witness depositions, and for leave to call additional witness as well as leave to file, serve and rely on the said witness depositions. Some of the grounds of the application were that some of the documents and other relevant facts, needed in proof of the petition, were not available at the time of filing the petition; that some other relevant facts came to the petitioners after the filing of the petition. The application was dismissed, in the main, because the petitioners wanted to introduce new facts in the petition. The Court held that the time for amendment of the petition had passed and that the application, if granted, will over-reach the Respondents. The Supreme Court in that case, said:
Perhaps the only thing I may add is that the application placed before the Tribunal was, I think, an after-thought. It was orchestrated,
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certainly, with a view to over-reach. If there was evidence which was fundamental to the determination of the petition, that evidence ought to have been placed willy-nilly before the tribunal within the time limit specified by the Electoral Act or any other Act. That evidence ought to be the spinal cord of the Petition. Per Mohammad JSC.
Of course, the above is not the situation in this case, at hand, where the application does not suggest any move to amend the Petition or to seek leave to introduce new or fresh facts to the Petition. Appellant merely sought leave to call relevant additional witnesses to testify in proof of the Petition as per the facts already pleaded and specified, particularly in paragraphs 1, 5, 24, 27 and 30, of the Petition. The 1st Respondent even appeared to have agreed with the Appellant on the above, when he argued strongly against three of the listed additional witnesses Ochiagha Sunday, Nwosu J., and Chigozie Ezeocha, whom he tried to impugn their credibility and said:
The Tribunals refusal of the application in relation to them should not be a cause for complaint in this appeal. The
41
credibility of the deponent is, however, put to question when it is shown that the purported depositions of Ochiagha Sunday, Nwosu J., and Chijioke Ezeocha are attached to the application, contrary to the deposition in the affidavit.
See paragraphs 3.06 to 3.09 of the 1st Respondents Brief. That left the other proposed witnesses not attacked as 1st Respondent admitted that they would be needed to lead evidence on the said paragraphs of the Petition (See pages 8 to 11 of the 1st Respondents Brief).
Appellants did not, therefore seek to introduce new/fresh facts to the Petition with a view to amending it, but rather sought to call relevant witnesses to testify on the facts already pleaded and joined. And it would appear to be a denial of fair hearing to refuse them the opportunity to call such witnesses.
I think the case of PDP Vs Edem (2016) 12 NWLR (Pt.1525) 106 is more apposite to this case, where it was held:
It is our view that to deny the petitioners the opportunity of bringing evidence to support the facts, they already pleaded has a tendency of denying them fair hearing in those proceedings. This is more so,
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that the indulgence they have sought is in pursuance of an earlier order granted them by the Tribunal to inspect INEC Electoral Materials. To now deny them to opportunity to bring in proposed evidence to support facts they have already pleaded, will amount to the Tribunal taking away with the other hand what it had initially given with one hand. Per Oyewole JCA
In this case, at hand, the Tribunal had on 24/4/19, granted the Petitioners request for INEC to give them certain documents and this application, which the Tribunal refused to grant, had also sought to subpoena INEC to testify for them probably tender those documents earlier ordered to be produced by INEC. That observation in the case ofP.D.P Vs Edem (supra) therefore appears real or palpable in this case, as it amounts to giving something with one hand and taking it away with the other hand!
I therefore think and hold that this case, at hand, is distinguishable from the case of Oke Vs Mimiko (supra), but more in line with PDP Vs Edem (supra), in as much as the Appellants were not seeking to introduce new or fresh facts to the Petition, with a view to amend, the
43
petition. They were rather seeking to bring additional witnesses meant to adduce evidence on the facts already pleaded and outlined in the petition.
I do not think a party should be barred from calling a witness he considers vital, to present his case, as that would violate the cardinal principles of fair adjudication. In the case of Ayeleru Vs Adegbola & Ors (2010) LPELR 3828 CA, it was held:
In the adjudication of any matter, the parties should be given every and full opportunity to present their cases and in so doing, to call witnesses that they consider vital to the prosecution of their cases. See also Audu Vs Guta (2004) NWLR (Pt.864) 463.”
Also in Aregbesola Vs Oyinlola (2009) 14 NWLR (Pt.1162)429 it was held that:
The need to do substantial justice is greater in election petition cases. This is because the Court is not only concerned with the rights of the parties inter se but also the larger interest and rights of the people in various Local Government Areas who had exercised their franchise on Election Day.
See also Abubakar Vs Yar’Adua (2008) All FWLR (Pt.404)1409 at 1450, where
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TOBI JSC (of blessed memory) said:
I am in entire agreement with the Court of Appeal when the Court held that full opportunity should be given to parties in the interest of justice without due regard to technicalities. Gone are the days when Courts of law were only concerned with doing technical and abstract justice based on and 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 the Court doing technical justice will not surface again. And what is more, election Petitions are sui generis and should be treated in that domain or realm. If Courts of law are bound to do substantial justice in ordinary civil matters, how much less in election matters I do not think that the Court of Appeal was wrong in giving one extra kilometer to accommodate the 4th to 808th Respondents. The Court did a good job and I commend the Justices.
I do not think the interest of justice and fair hearing, should be sacrificed in preference for adhering to curious, technical complaints, even in election matters, raised, deliberately, as sword to tear
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down and destroy the soul of justice, and stalling the hearing of a case on its merits.
In the case of P.D.P Vs Edem (supra), the Court tried to distinguish amendment of a Petition (the substance being grounds of the petition and facts pleaded therein) from amendment of the list of documents accompanying the Petition, as stated in Paragraph 4 (5) of the 1st Schedule to the Electoral Act. Of course, the documents accompanying the Petition can only be relevant in the context of pleaded facts in the Petition, such that, no document would have value, even if incorporated by amending the list of documents, where the said document has no bearing with the facts pleaded in the Petition. Thus, this Court held (in the PDP Vs Edem (supra)):
It is clear that the statute in issue (which is Paragraph 4 (5) of the 1st schedule) makes a clear distinction between the Petition and what accompanies it, the pleading and evidence to establish it.
I do not therefore see any legal bar to allowing amendment of the list of witnesses to accommodate additional vital witnesses, considered necessary by the petitioners to testify in proof of the facts
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already pleaded in his Petition, especially where the application is brought within the pendency of the pre-hearing session, when parties are expected to streamline their case, agree on the number of witnesses to call, outline the real issues for trial and agree on the general direction and map out the approach to resolve the issues at the trial. See Onyedebelu Vs Nwaneri & Ors (2008) LPELR 4793 (CA); Olawole Vs INEC (2010) LPELR 4958 CA on the essence of pre-hearing session.
I hold that the Tribunal was therefore wrong, in my opinion, to refuse the application and to have dismissed it. I resolve the issues for the Appellants and allow the Appeal.
I set aside the decision of the Tribunal, reached on 6/5/2019. Accordingly:
(1) The Application by the Appellants (as petitioners) to call additional witnesses, namely:
1) Chukwudi Ukor;
2) Otiah Martins;
3) Eburuam Ifeanyi;
4) Obiefule Nwauwa;
5) Ebere Nwanwa;
6) Ochiagha Sunday;
7) Nwozu J;
8) Chigozie Ezeocha and
9) The 3rd Respondent, to testify in the petition, as per the facts already pleaded in the Petition, is hereby granted
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2) The statement on Oath of the said additional witnesses, already exhibited and attached to the list of witnesses are hereby deemed duly filed and served.
3) The civil summons for witness requiring subpoena (Form 1 (A)) already filed and served on the 3rd Respondent, is hereby deemed duly done.
d) The List of witnesses and list of documents are, accordingly amended to accommodate the said statement on oaths of the said Additional witness. as per the Exhibits A and B attached to the Motion papers, and hereby deemed duly filed and served.
Parties shall bear their Respective Costs.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree
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Appearances:
LEO DEGREAT AWAZIEAMA, ESQ (who settled the brief) with him, S.C. NWACHI (MRS) For Appellant(s)
N.R. CHIBUISI MRS, with him, V.C. ONYEAGBAKO (MISS) and O.G. ADINDU ESQ (who settled the brief)- 1st Respondent.
DR. IKENNA IHEZUO (who settled the brief)-2nd Respondent.
J.M.E. ONYENAKASI ESQ, with him, S.N. ETTOM – 3rd Respondent.
For Respondent(s)
Appearances
LEO DEGREAT AWAZIEAMA, ESQ (who settled the brief) with him, S.C. NWACHI (MRS) For Appellant
AND
N.R. CHIBUISI MRS, with him, V.C. ONYEAGBAKO (MISS) and O.G. ADINDU ESQ (who settled the brief)- 1st Respondent.
DR. IKENNA IHEZUO (who settled the brief)-2nd Respondent.
J.M.E. ONYENAKASI ESQ, with him, S.N. ETTOM – 3rd Respondent. For Respondent