OJO JOHNSON AJAGBE V. YIDIAT BABALOLA & ORS.
(2010)LCN/3892(CA)
In The Court of Appeal of Nigeria
On Monday, the 21st day of June, 2010
CA/I/EPT/HA/76/2008 (Cons.)
RATIO
SUBPOENA: MEANING OF A SUBPOENA; MEANING OF A SUBPOENA DUCES TECUM AND A SUBPOENA AD TESTIFICANDUM; DIFFERENCES BETWEEN NOTICE TO PRODUCE AND SUBPOENA DUCES TECUM ET AD TESTIFICANDUM
For a subpoena, is a formal document issued by the Court commanding a person required by a party to a suit to attend before the Court at a given date, to give evidence on behalf of the party or to bring with him and produce any specified document required by the party as evidence or for both purpose. By a subpoena duces tecum, the witness is ordered to produce specified documents while in the case of a subpoena ad testificandum, the witness, is ordered to appear to give testimony. See:- Civil Procedure in Nigeria (2nd Edition) by Fidelis Nwadialo At Page 652 and Black’s Law Dictionary (18th Edition) Page 1467. In the case of Notice to produce, if the document is in the possession of a person who is not a party to the proceedings, but is within jurisdiction, the Plaintiff serves him with the appropriate subpoena to come and produce document. See:- Gately – on Libel and Slander (7th Edition) Paragraphs 1209 and 1213. Also, see:- Chief Emmanuel Ogunbadejo Vs. Otunba A.L.A. Owoyemi (1993) 1 NWLR (Part 271) 517 At Pages 533-534) Habib Nigeria Bank Ltd. Vs. F.S .M. Koya (1992) 7 NWLR (Part 251) 43 At 56.s Another distinguishing factor between the Notice to produce and subpoena duces tecum et ad testificandum is the consequence of disobedience. In the case of Notice to produce, to satisfy the provisions of Section 97 (1) (a) (i) of the Evidence Act, not only must it be shown that, the documents being sought to be tendered in the custody of the adverse party, if he failed to produce same after receiving notice secondary evidence, can be tendered by the Plaintiff in place of the primary evidence in possession of the adverse party as envisaged by Section 98 of the Evidence Act. See:- Chief Gani Fawehinmi Vs. Inspector General of Police & Ors. (2000) 7 NWLR (Part 665) 481 At Pages 524-525. On the other hand, the consequences of failure to produce documents on subpoena, where a subpoena is issued to produce a document, the failure to do so is not the subject of adverse finding by the Court. The proper step to be taken by the Court in accordance with the law is to issue a committal warrant for disobedience of the subpoena. See:- Buhari Vs. Obasanjo (2005) 13 NWI & (Part 941) 1. PER SIDI DAUDA BAGE, JCA,
PRACTICE DIRECTION: PURPOSE OF THE PRACTICE DIRECTION
There can be no gain saying the fact that the purpose of the Practice Direction is to complement the provisions of the Electoral Act by enhancing and facilitating the expeditious hearing of election petitions. Its purpose is 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:- Adams Vs. Umar (2009) 5 NWLR (Part 1133) 41 At 107-108 E-C; Yusuf Vs. Obasanjo (2003) 9-10 SC 53. PER SIDI DAUDA BAGE, JCA,
WHETHER IN THE IMPLEMENTATION OF THE RULES OF PROCEDURE OR PRACTICE DIRECTION, THE PARAMOUNT CONSIDERATION OF THE COURT IS TO DO SUBSTANTIAL JUSTICE BETWEEN THE PARTIES
The basic principle of law is that, rules of Court are meant to be obeyed. However, in the implementation of the rules of procedure or Practice Direction, the paramount consideration of the Court is to do substantial justice between the parties. A Court should not in the process allow strict adherence to technicalities becloud its sacred duty to do substantial justice. At the end of the day, an impartial by stander should be satisfied that justice has been done to all parties in the matter. See:- Abubakar Vs. Yar’Adua (2008) 1 SC (Part 11) 77 At 122 Lines 1-7; Oni Vs. Fayemi (2008) 8 NWLR (Part 1089) 400 At 443 C-E & 451-452 G-B. PER SIDI DAUDA BAGE, JCA
EFFECT OF THE BREACH OF THE RIGHT TO FAIR HEARING ON THE PROCEEDINGS
The position of the law is that, the breach of the right to fair hearing vitiates the entire proceedings rendering same null and of no effect, no matter how well conducted. See:- Ceekay Traders Ltd vs. General Motors Company Ltd (1992) 2 NWLR (Part 222) 132; Adigun vs. Attorney-General (Oyo State) (1997) 1 NWLR (Part 53) 678; Saliu vs. Egeibon (1994) 6 NWLR (Part 248) 23 at 44. PER SIDI DAUDA BAGE, JCA
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
OJO JOHNSON AJAGBE Appellant(s)
AND
YIDIAT BABALOLA & 82 ORS. Respondent(s)
SIDI DAUDA BAGE, JCA, (Delivering the Leading Judgment): This is an appeal against the Rulings and Judgment of the Governorship and Legislative Houses Election Petition Tribunal, holden at Osogbo (hereinafter referred to as “the Tribunal”), delivered on 31st of October 2007; 10th November, 2007; 11th December, 2007 and 19th April, 2008 respectively.
On the 14th of April, 2007, elections were held into the Osun State House of Assembly for Ede South Constituency Seat. The Appellant contested the election on the platform of the Action Congress (A.C.) while the 1st Respondent contested on the platform of the People’s Democratic Party (P.D.P.). At the conclusion of the election, the 3rd and 4th Respondents returned the 1st Respondent as the winner. The Appellant was dissatisfied with the return of the 1st Respondent and filed a petition before the Tribunal, challenging the said return on the ground inter alia, that the election was characterized by numerous electoral malpractices, irregularities and non-compliance with the provisions of the Electoral Act, 2006. He sought a declaration that, the election was invalid and therefore vitiated by reason of non-compliance with the Electoral Act; an order nullifying the elections; and an order directing the 3rd Respondent to conduct fresh elections for the said state constituency.
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 Direction, 2007. At the conclusion of the pre-hearing sessions, the matter proceeded to trial. The Appellant called 10 (ten) witnesses and tendered various documents through them. The 1st and 2nd Respondents called 9 (nine) witnesses. The 3rd to 81st Respondents (INEC and its officials) and the 82nd and 83rd Respondents (the Law Enforcement Agents) did not call any witnesses. At the conclusion of the trial, the parties filed and exchanged written addresses. In a considered Judgment delivered on 19th April, 2008, the Tribunal dismissed the petition.
The Appellant, being dissatisfied with the decision, filed a Notice of Appeal dated 2nd of May, 2008 containing 9 (nine) grounds of appeal. The Appellant, 1st and 2nd Respondents and 82nd and 83rd Respondents filed and exchanged their respective Briefs of Argument. The 3rd – 81st Respondents did not file any Brief. Olayinka Okedara, learned Counsel for the Appellant, adopted and relied on the Appellant’s Brief of Argument dated 6th October, 2009; filed on 7/10/2009 and the Appellants Reply to Respondents’ Brief of Argument dated 6th April 2010, filed on the 27/4/2010. He urged the Court to allow the appeal. When the appeal came up for hearing on the 29/4/2010, the learned Counsel to the 1st and 2nd Respondents was absent, even though there was proof before the Court that he was duly served with the hearing notice on the 23/4/2010 against the hearing of the appeal for the 29/4/2010. Learned Counsel to the Appellant – Okedara, urged the Court to discountenance the Notice of Preliminary Objection contained in the 1st and 2nd Respondents’ Brief dated 25/1/2010 and filed on the 27/1/2010. He had although filed a Reply to the said Notice of Preliminary Objection dated 6/4/2010. Having being satisfied that the Counsel to the 1st and 2nd Respondents was duly served with the hearing notice for 29/4/2010, the Court considered the Notice of Preliminary Objection contained in the 1st and 2nd Respondents’ Brief of Argument as having being abandoned and consequently struck out same. The Brief of Argument of the 1st and 2nd Respondents dated 25/1/2010 filed 27/1/2010 is therefore deemed argued. O. F. Akintayo, State Counsel, Ministry of Justice, Osun State, adopted and relied on the 82nd and 83rd Respondents’ Brief of Argument dated 7/12/2009, and filed on 10/12/2009. He urged the Court to dismiss the appeal and uphold the judgment of the Tribunal.
From the 9 (nine) grounds of appeal contained in the Notice of Appeal, the Appellant formulated 5 (five) Issues for determination thus:-
(1) “Whether the Tribunal was right when it held that the evidence led by PW1, PW2, PW3, PW4, PW5, PW6, PW7 and PW9 – party supervisors of the Petitioner, can be characterized as hearsay in the face of their uncontroverted assertions that they were present in various units and saw the alleged acts of malpractices and irregularities committed by the agents and thugs of the Respondents. (Grounds 2 & 3 of the Notice of Appeal).
(2) Whether the Tribunal properly evaluated the evidence before it when it rejected the unimpeached evidence led by PW1, PW2, PW3, PW4, PW5, PW6, PW7, PW8, PW9 and later held evidence led by DW1, DW2, DW3, DW4 and DW5 to be credible as to conclude that the said election was free and fair. (Ground 1 of the Notice of Appeal).
(3) Whether insertion of Notice to produce in a Petitioner’s petition renders subpoena duces tecum et ad testficandum superfluous as to produce the witness who answers the subpoena by producing the relevant documents from being sworn in to give evidence. (Ground 4 of the Notice of Appeal).
(4) Whether it is in accordance with the law that a witness subpoened should have been listed among the witness of the person who caused him to be subpoened together with such witness’s deposition having been frontloaded by the party who caused him to be subpoened. (ground 5 of the Notice of Appeal).
(5) Whether the Ruling of the Tribunal delivered on 11th day of December, 2007, is in accordance with the Practice Direction of the Election Petition, Rules of Natural Justice, equity and good conscience when the Tribunal refused the Appellant’s application to call an additional witness to tender the report of inspection of electoral materials and for such witness to give evidence in respect thereof the same inspection process having been conducted by the Appellant pursuant to an order of the Tribunal in order for the Appellant to maintain his petition. (Grounds 6, 7, 8 and 9 of the Notice of Appeal).
The 1st and 2nd Respondents formulated two (2) Issues from the 9 (nine) grounds of appeal as follows:-
(1) “Whether the Tribunal did not adopt the correct or proper approach in the assessment and evaluation of the pieces of evidence proffered by the parties vis a vis their pleadings in arriving at its decision.
(2) Whether the Tribunal was wrong in dismissing the Petitioner/Appellant’s applications to call additional witnesses.”
The 82nd and 83rd Respondents formulated a single Issue for determination thus:-
“Whether by evidence adduced at the lower Tribunal the Appellant has been able to prove the allegation made against the 82nd and 83rd Respondents. (Ground 1 of the Notice of Appeal).”
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 Appellant are adequate to dispose of the appeal. I shall consider Issues 3, 4 and 5 which raised the issue of fair hearing together.
In support of the 3rd Issue, Mr. Okedara, learned Counsel for the Appellant, argued that, there is a clear distinction between notice to produce on one hand and subpoena on the other hand. It is his contention that, the two are mutually exclusive as the existence of one does not preclude the other. Learned Counsel submitted further that, the legal implication of failure to produce under a notice to produce, is a direct permission to the party requiring the document to tender secondary evidence of the document required. The case is not so when considering subpoena duces tecum, as the consequences of failure to heed the terms of a subpoena duces tecum is to expose the person directly under the subpoena to contempt proceedings. See:- Muhammed Buhari and Another Vs. Chief Olusegun Obasanjo (2005) 1 NWLR (Part 941) At 2575.C; Ambassador Odu Vs. Duke and Ors. (2006) 1 NWLR (Part 961) 375 At 391 C.A.; Citing Fidelis Nwadialo: Civil Procedure in Nigeria, 2nd Edition 200 At 652.
Learned Counsel submitted further that, the person obliged by the subpoena ad testificandum has an obligation to give evidence. No witness shall give evidence without being sworn. It is therefore, wrong for the Tribunal to have disallowed the Resident Electoral Commissioner from being sworn in to give evidence simply because, there is Notice to produce in the Petitioner’s petition. Learned Counsel, submitted further that, the Resident Electoral Commissioner was producing the required documents, pursuant to the subpoena duces tecum et ad testificandum issued by the Chairman of the Tribunal at the instance of the Appellant and not on account of the notice to produce mentioned in the Petitioner’s petition. The refusal of the Tribunal to allow the representative of the Resident Electoral Commissioner to be sworn to give evidence is nothing, but an attempt to shield a witness on whom there is an order of Court to give evidence from giving such evidence which evidence was required to prove the Appellant’s case against the Respondent.
A corollary to this argument, the learned Counsel argued on issue as to whether in accordance with the law a subpoened witness should have been listed among the witness of the person who caused him to be subpoened. together with such witness’s deposition having been frontloaded by the party which caused him to be subpoened. The general provision of the Practice Direction on frontloading of witness’s deposition on oath only contemplates willing and voluntary witnesses and not one who had to be compelled by an order of Court to testify by way of subpoena. The only implication of applying such provisions of the Practice Direction to a subpoened witness is to say that, a party should prepare witness’s deposition for his adversary who is a Respondent against the petition. Expecting that such witness would sign and the deposition is beyond human reasoning. Learned Counsel further submitted that, the practical and legal effect of the Ruling of the Tribunal on the need to frontload written deposition of a subpoened witness is to totally render subpoena inapplicable to election petition. Such situation was definitely not within the contemplation of the Practice Direction of the Tribunal. On Issue Five (5) flowing from the argument of Issue Four (4), learned Counsel submitted that, the Practice Direction cannot be applied to deny constitutional right to fair hearing. Section 159 of the Electoral Act, 2006 gave the Tribunal the power to grant an order of inspection for the purpose of instituting or maintaining a petition which was the purpose of the order of inspection granted to the Appellant after the institution of the petition.
Learned Counsel submitted further that, it is clear purport and intendment of Section 159 of the Electoral Act, 2006 that evidence obtained upon orders of inspection will be used for the purpose of maintaining the petition. It is therefore, indubitable that the decision of the Tribunal refusing the application to bring additional witnesses and tender inspection report clearly contravenes the provision of the Section 159 of the Electoral Act, 2006. It is further submitted that, the Tribunal ought to have had recourse to the provisions of Section 159 of the Electoral Act, 2006; rather than paragraph 1 of the Practice Direction. Paragraph 1 of the Practice Direction only prescribes the minimum requirements for a valid presentation and does not preclude bringing of additional witness, particularly when the purpose of the application for additional witness is pursuant to the statutory provision in Section 159 of the Electoral Act, 2006 and order of inspection granted by the Tribunal. The provision of the Practice Direction cannot be applied to infringe upon express provision of Section 159 of the Electoral Act, 2006. Also, the application was brought after hearing has commenced, the issue of answer to pre-hearing information sheet is absolutely irrelevant to whether the application ought to be considered and granted.
Learned Counsel submitted further that, paragraph 6 (1) of the Practice Direction permits motions to be heard after pre-hearing session with leave of Tribunal “in extreme circumstances” and does not mean that, application can be moved and granted during hearing only where the answer to the pre-hearing information indicate that, the application will be brought. What the Tribunal ought to have done is to only consider whether there was “extreme circumstances” warranting the leave to bring the application. This provision, quite crucial to the determination of Appellant’s application was not considered by the Tribunal at all, but rather relied heavily on irrelevant consideration that is not known to law and the Practice Direction. See:- Olaniyan Vs. Oyewole (2008) NWLR (Part 1079) 11 4 At 137. Learned Counsel submitted further that, there is clear breach of the Appellant’s right to fair hearing as there is not applicable condition precedent that was not complied with by the Appellant and Practice Direction cannot override Section 36 of 1999 Constitution.
In relation to the 3rd, 4th and 5th Issues formulated by the Appellant, learned Counsel to the 1st and 2nd Respondents submitted that, the decision of the 10th November; 11th December, 2007 were all interlocutory decision during the hearing of the petition. The Ruling delivered on the 11th day of December, 2007 was sequel to an application by the Appellant to call additional witnesses. The 1st and 2nd Respondents opposed the application on legal grounds, also on equitable grounds. The application was brought not only outside pre-hearing: session, but at the end of the Appellant’s: case. Learned Counsel further submitted that, the Tribunal’s decision refusing leave to call additional witness was well grounded. In the first place, every application to a Court or Tribunal for leave, and exercise of judicial discretion, is an evocation and appeal to the equitable jurisdiction of the Court. It is incumbent upon the Applicant to meet requirements of the rules of Court and justify the grant of the application. More importantly, the Applicant must act in good faith and the application itself must be bonafide. He who comes to equity must come with clean hands. See:- Williams Vs. Hope Rising Voluntary Society (1992) NSCC36:42.
Learned Counsel submitted further that, by paragraph 6(1), (2) and (3) of the Practice Direction, the Tribunal has the discretion to determine whether or not an Applicant seeking to move an application outside the pre-hearing session has shown exceptional or extreme circumstances to warrant the grant of the application. He argued that, in the exercise of discretion, no one case can be authority for another. He cited the case of: Yesufu vs. Ilori (2008) 6 NWLR (Part1083) 333. at 340. Learned Counsel further submitted that, at the time of preparing the petition, the Appellant ought to have known that, he would conduct an inspection of electoral materials and tender the report through a witness. That the name of the witness ought to have been stated in the list of witnesses and frontloaded; and the fact that the inspection report would be tendered referred to. He was of the view that, the failure to frontload the information had the effect of springing a surprise on the Respondents. He contended that, this is in breach of the mandatory provisions of paragraph 1 of the Practice Direction. He referred to: Buhari Vs. INEC (2008) 4 NWLR fPart 1078) 546. He argued that, the fact that the Tribunal made an order authorizing the inspection of electoral materials does not ipso facto mean that, the Tribunal is bound to grant an application to call additional witnesses. He argued that, the Appellant could make use of the information gathered during the inspection through the witnesses already listed and whose statements before the Tribunal already contained allegations of various acts of electoral malpractice. He disagreed with the Appellant’s contention that, the Tribunal in granting the order for inspection ought to have known that, it would be necessary to call a witness who participated in the inspection to tender the report.
He submitted that, the Practice Direction must be obeyed and that a litigant is not at liberty to pick and choose which aspect to comply with.
Learned Counsel submitted that, in the instant case, granting the application to call additional witnesses would have had the effect of amending the petition through the back door by introducing fresh facts and issues, would have taken the Respondents by surprise. by overreacting them, would have radically changed the character of the petition and would have wasted the time of the Tribunal if the other parties were to reply to the new issues by amending their processes. On the special nature of election petition proceedings and the need for expeditious hearing, he referred to: Ahmed Jiddah Vs. Kallah (1994) 4 NWLR (Part 599) 426 At 433; Aregbesola Vs. Oyinlola in Appeal No. CA/I/EPT/GOV/31/2008. He submitted that, where the Electoral Act and/or Practice Direction has set down a procedure to obtain a hearing, a party acts at his peril if he fails to comply and cannot be heard to complain of lack of fair hearing. He referred to MMS Ltd. Vs. Oteju (2005) 14 NWLR (Part 945) 517 At 543.
On Issues 4 and 5 of the Appellant’s Brief of Argument, learned Counsel to the 1st and 2nd Respondents submitted that, the fact that lower Tribunal prevented or denied the representative of the Resident Electoral Commissioner, 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 or any provision of the Practice Direction as contended by the Appellant in their Brief. It is submitted that, the Tribunal merely approved the written application made by the Appellant for the issuance of the subpoena on Resident Electoral Commissioner (REC). The Tribunal did not issue the said suppoena suo motu. The approval of the issuance of the subpoena by the Tribunal does not automatically tantamount to allowing the Resident Electoral Commissioner (REC) 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 under Issue 3 above.
Learned Counsel submitted further that, the Appellant cannot use the issuance of subpoena to circumvent and/or evade the provision of the Practice Direction as contained in Paragraph 1 of the Practice Direction which stipulates that, written statement ought to be filed before the witness can testify, and this is what is referred to as “affidavit to be used” in Order 41 Rule 27 of Federal High Court Rules. In absence of this, the Tribunal was right in upholding the objection raised by the Respondents that the representative of Resident Electoral Commissioner (REC) cannot be sworn in to testify in the petition. Learned Counsel submitted further 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 or who has committed procedural blunder in manner of presentation of the petition or prosecution or the conduct of the case. Such a party can therefore not be heard to complain of breach of fundamental right to fair hearing.
In determining Issue 3 of the Appellant’s Brief of Argument as to whether the insertion of Notice to produce in a Petitioner’s petition renders a subpoena duces tecum et ad testificandum superfluous as to produce the witness who answers the subpoena by producing the relevant documents from being sworn to give evidence.
Firstly, to appreciate the line of distinction between the Notice to produce as envisaged by Sections-95, 97 and 98 of the Evidence Act, and subpoena duces tecum et ad testificandum, is to arrive at what each stands for under the law; For a subpoena, is a formal document issued by the Court commanding a person required by a party to a suit to attend before the Court at a given date, to give evidence on behalf of the party or to bring with him and produce any specified document required by the party as evidence or for both purpose. By a subpoena duces tecum, the witness is ordered to produce specified documents while in the case of a subpoena ad testificandum, the witness, is ordered to appear to give testimony. See:- Civil Procedure in Nigeria (2nd Edition) by Fidelis Nwadialo At Page 652 and Black’s Law Dictionary (18th Edition) Page 1467.
In the case of Notice to produce, if the document is in the possession of a person who is not a party to the proceedings, but is within jurisdiction, the Plaintiff serves him with the appropriate subpoena to come and produce document. See:- Gately – on Libel and Slander (7th Edition) Paragraphs 1209 and 1213. Also, see:- Chief Emmanuel Ogunbadejo Vs. Otunba A.L.A. Owoyemi (1993) 1 NWLR (Part 271) 517 At Pages 533-534) Habib Nigeria Bank Ltd. Vs. F.S .M. Koya (1992) 7 NWLR (Part 251) 43 At 56.s In the instant case, as observed by the learned Counsel for the Appellant, the Tribunal had approved and signed subpoena ad testificandum et duces tecum which means that, apart from producing the documents,, the witness is also to give evidence. The insertion of the Notice to produce in the Appellant’s petition is therefore more related to subpoena duces tecum where the witness is ordered to produce documents. The argument of the learned Counsel, to 1st and 2nd Respondents cannot hold as is the case with the instant petition where the subpoena approved and signed by the Tribunal is subpoena ad testificandum et duces tecum which provides that, apart from the producing the documents, the witness is also to give evidence. It is therefore; wrong to submit that the insertion of the Notice to produce in the Appellant’s petition had made the subpoena duces tecum et ad testificandum superfluous.
Another distinguishing factor between the Notice to produce and subpoena duces tecum et ad testificandum is the consequence of disobedience. In the case of Notice to produce, to satisfy the provisions of Section 97 (1) (a) (i) of the Evidence Act, not only must it be shown that, the documents being sought to be tendered in the custody of the adverse party, if he failed to produce same after receiving notice secondary evidence, can be tendered by the Plaintiff in place of the primary evidence in possession of the adverse party as envisaged by Section 98 of the Evidence Act. See:- Chief Gani Fawehinmi Vs. Inspector General of Police & Ors. (2000) 7 NWLR (Part 665) 481 At Pages 524-525.
On the other hand, the consequences of failure to produce documents on subpoena, where a subpoena is issued to produce a document, the failure to do so is not the subject of adverse finding by the Court. The proper step to be taken by the Court in accordance with the law is to issue a committal warrant for disobedience of the subpoena. See:- Buhari Vs. Obasanjo (2005) 13 NWI & (Part 941) 1.
On the whole the insertion of the Notice to produce if done in the Petitioner’s petition had not rendered the subpoena duces tecum et ad testificandum superfluous. The refusal of the Tribunal to admit any document produced by the witness subpoened had denied the Appellant his right to fair hearing; thus, Issue No. 3 resolved in favour of the Appellant.
Issues 4 and 5 are to be treated together as they are intricately interwoven. Whether it is in accordance with the law that a witness subpoena should have been listed among the witness of the person who caused him to be subpoened together with such witness’s deposition having been frontloaded by the party who caused him to be subpoened, and whether the Ruling of the Tribunal delivered on 11th day of December, 2007 is in accordance with the Practice Direction of the Election Petition Rules of natural justice, equity and good conscience.
The Ruling of the Tribunal on the 11th of December, 2007 runs thus:-
“We have considered the process filed by Counsel. The Tribunal had in a similar application in Suit No. NA/EPT/OS/1/2007 Lasun Vs. Awoyemi & 149 Others delivered on 4/12/2007, ruled as follows:-
“Extreme circumstances stated in paragraph 6(1) of the Practice Direction Envisages a situation that is not within the reasonable contemplation of the Applicant. That is not the situation “in the instant application” We therefore hold that, no exceptional circumstances exist to warrant the grant of the 1st relief.The depositions sought to be brought in was not filed along with the petition. There was also no indication in the Petitioner’s answer to the pre-hearing information sheet that he was going to call additional witnesses’..Section 159 (1) of the Electoral Act speaks of polling documents. What is before us relates to polling documents which do not fall under Section 159 (2) of the Electoral Act. We hold that, the application fails and is hereby dismissed.”
We do not see any reason to depart from the above stated Ruling. This is especially so in the light of the decision of the Court of Appeal in the consolidated petitions of: Buhari Vs. INEC, and Abubakar Vs. Yar’Adua in Petition Nos. CA/A/EP/2/07 and CA/A/EP/3/07, delivered on Monday, the 10th day of November, 2007.
We therefore dismiss this application.
(Sgd.)
T. D. Naron,
Chairman,
11/12/07.
(Sgd.) (Sgd.)
Saadu Muhammed, J. N. Akpughunum,
Member, Member,
11/12/07 11/12/07.
(Sgd.) (Sgd.)
A. T. Badamasi,. J.E. Ekanem
Member, Member,
11/12/07 11/12/07
The clear starting point is to examine the provision of Paragraph 6 (1) of the Election Tribunal and Court Practice Direction, 2007 which provides:-
“6 (1) No motion shall be moved. All motions shall come up at the pre-hearing session, except in extreme circumstances with leave of the Tribunal.”
Also, Paragraph 4 (5) and (6) of the same Practice Direction provides:-
4 “(5) The Tribunal or Court may at or before the hearing of a petition order or direct that evidence of any particular fact be given at the hearing in such manner as may be specified by tie order or direction.”
“((6) The power conferred by sub-paragraph 5 of this paragraph extends in particular to ordering or directing that evidence of any particular fact be given at the trial:-
(a) by statement on oath of information or belief; or
(b) by the production of documents or entries in books; or
(c) by copies of documents or entries in books, or
(d) in the case of a fact which is of common knowledge, either generally or in particular district
by the production of a specified newspaper which contains a statement of that fact.”
The above provisions empower the Tribunal to grant the orders sought if it is satisfied that, the Applicant has disclosed exceptional circumstances to warrant its grant outside the pre-hearing session. The main issue in contention here is what constitutes exceptional circumstances. The Tribunal in its Ruling, cited earlier, Held that, the application could not be granted, because the petition was not frontloaded with the statement of witness, pursuant to paragraph 1(1) of the Practice Direction.
There can be no gain saying the fact that the purpose of the Practice Direction is to complement the provisions of the Electoral Act by enhancing and facilitating the expeditious hearing of election petitions. Its purpose is 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:- Adams Vs. Umar (2009) 5 NWLR (Part 1133) 41 At 107-108 E-C; Yusuf Vs. Obasanjo (2003) 9-10 SC 53. The basic principle of law is that, rules of Court are meant to be obeyed. However, in the implementation of the rules of procedure or Practice Direction, the paramount consideration of the Court is to do substantial justice between the parties. A Court should not in the process allow strict adherence to technicalities becloud its sacred duty to do substantial justice.
At the end of the day, an impartial by stander should be satisfied that justice has been done to all parties in the matter. See:- Abubakar Vs. Yar’Adua (2008) 1 SC (Part 11) 77 At 122 Lines 1-7; Oni Vs. Fayemi (2008) 8 NWLR (Part 1089) 400 At 443 C-E & 451-452 G-B.
Paragraph 1 (1) of the Practice Direction provides:-
“1. (1) All petitions to be presented 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.”
Now, the question is whether the Appellant, in the circumstances of this case could have frontloaded the additional witness statement, sought to be filed. A fact that is not in dispute is that, the order for the inspection of documents was made after the crime prescribed by Section 141 of the Electoral Act for presenting a petition (duly frontloaded as reread by paragraph 1 (1) of the Practice Direction) had elapsed. The order was granted for the purpose enabling the Appellant to maintain his petition.
There was no objection to the order being granted.
In paragraphs 11, 12, 13 and 14 of the affidavit in support of the application dated:25/6/17, it was averred thus:-
11. “The Petitioner/Applicant requires inspection of the polling documents and; other electoral materials described in the motion paper herein which are in custody of the 3rd and 4th Respondents and which were allegedly used in the conduct of the Osun State House of Assembly Legislative Election on the 14th April, 2007, leading to the return of the 1st Respondent as duly elected.
12. That the Applicant requires the inspection of the documents and materials stated on the motion paper to enable it maintain his petition.
13. That I believe the Respondents will not be prejudiced by this application.
14. That this application is necessary in the interest of justice and equity.”
The proposed witness statement and inspection report were duly annexed thereto. It seems to me that, the above averments disclosed exceptional circumstances to warrant the exercise of the Court’s discretion in favour of the: Applicant. It would be unreasonable in my view 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.
In granting the order for inspection, the Tribunal granted the request of the 1st and 2nd Respondents that they be present during the inspection. They could not therefore contend that, the calling of the additional witness or the tendering of the inspection report would take them by surprise or would be prejudicial to them. Having granted the application for Inspection “for the purpose of maintaining the petition”, it amounted to shutting the Appellant out when the Tribunal refused to allow him to file the written deposition of the person who participated in the inspection and to file his report in respect of the said Inspection. This is particularly so, having regard to the fact that, the grounds of the petition include allegations that the election was characterized by electoral malpractices, including ballot box stuffing, illegal thumb-printing, multiple voting, lack of accreditation of voters in several polling units and voting without accreditation among others.
The Supreme Court held in Abubakar Vs. Yar’Adua (Supra) at 122. Lines 23-29, per Tobi, JSC, thus:-
“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 arid 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 surface again. And what is more, election petitions are sui generis and should be treated in that domain or realm.”
In that case, 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. I hold that, 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.
The position of the law is that, the breach of the right to fair hearing vitiates the entire proceedings rendering same null and of no effect, no matter how well conducted. See:- Ceekay Traders Ltd vs. General Motors Company Ltd (1992) 2 NWLR (Part 222) 132; Adigun vs. Attorney-General (Oyo State) (1997) 1 NWLR (Part 53) 678; Saliu vs. Egeibon (1994) 6 NWLR (Part 248) 23 at 44.
Having resolved Issues 3, 4 and 5 in favour of the Appellant and found that, the trial was vitiated for lack of fair hearing, it is not necessary to I consider the remaining Issues raised in this appeal. In conclusion, the appeal succeeds. I accordingly allow it. The three (3) Rulings and the Judgment of the Governorship and Legislative Houses Election Petition Tribunal, Sitting at Osogbo in Petition No. HA/EPT/OS/12/2007, delivered on 31st October, 2007; 10th November, 2007; 11th December, 2007 and 19th April, 2008 Respectively, are hereby set aside for lack of fair hearing. It is hereby ordered that the President of the Court of Appeal shall constitute a fresh panel of the Osun State Governorship and legislative Houses Election Tribunal to hear the petition de novo. The petition shall be given an accelerated hearing.
The parties shall bear their respective costs in this appeal.
STANLEY SHENKO ALAGOA, J.C.A.: I read before now the judgment just delivered by my brother Sidi Dauda Bage (JCA) and I agree that the trial is vitiated by lack of fair hearing and the appeal should be allowed. I allow same and abide by all the orders contained in the said lead judgment. Parties are however to bear their own costs.
MODUPE FASANMI J.C.A: I have had the advantage of reading the Judgment of my learned brother S.D. Bage J.C.A. in this appeal. I agree with the analysis and the conclusions reached therein. I also allow the appeal. I abide by the consequential orders made in the lead judgment.
Appearances
Olayinka Okedara Esq.For Appellant
AND
O. F. Akintavo (S.C., Osun State, Ministry of Justice)For Respondent
