PEOPLE DEMOCRATIC PARTY v. BASSEY OTU & ORS
(2015)LCN/7987(CA)
(
In The Court of Appeal of Nigeria
On Friday, the 7th day of August, 2015
CA/C/NAEA/126/2015
RATIO
ELECTION PETITION; THE STRICT COMPLIANCE WITH RULES OF PROCEDURE IN ELECTION PETITION MATTERS
Now let me state clearly at the onset that Election petition matters are governed by rules of procedure strictly geared towards ensuring the speedy and efficient dispensation of justice. Unlike ordinary civil proceedings in certain circumstances, the slightest default in complying with a procedural step, which ordinarily or otherwise could be waived or cured could be fatal to an election petition. See MAGAJI V BALAT (2004) 8 NWLR (Pt. 876) 449 at 478 BUHARI V YUSUF (2003) 14 NWLR (Pt. 841)446. per. HAMMA AKAWU BARKA, J.C.A.
STATUTORY INTERPRETATION: THE USE OF THE WORD ‘SHALL’ WHICH PRESUPPOSES COMPLIANCE WITH THE EXPRESS PROVISIONS IN POINT AND WHICH CAN BE COMPROMISED OR WAIVED
It should be reiterated that the use of the word ‘shall’ presupposes compliance with the express provisions in point and which cannot be compromised or waived. See ILORI V UZOEGWU (2004) 19 WRN 93 at 105; BAMAYI V A-G. OF THE FEDERATION (2006) 6 NWLR (Pt. 66) 401. The consequence of paragraph 47(1) of the First Schedule therefore is that all motions ordinarily should be entertained at the pre-hearing session of the Tribunal. The only exception being in extreme Circumstances. See AYO ADESEUN & ANOR V CHIEF LUGMAN OYEBINI TLAKA & ORS. (2011) LPELR 4244 CA. per. HAMMA AKAWU BARKA, J.C.A.
JUSTICE
MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBEJustice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKAJustice of The Court of Appeal of Nigeria
Between
PEOPLE DEMOCRATIC PARTYAppellant(s)
AND
BASSEY OTU & ORSRespondent(s
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment).: This is an interlocutory appeal against the ruling/decision of the National and State Houses of Assembly Election Tribunal Holden at Calabar, the Cross River State capital in Petition No. EPT/CR/SE/215, between the Peoples Democratic Party (PDP) and Senator Bassey Edet Otu and 3 others delivered on the 18th of June, 2015.
In the said ruling which is at pages 1496 – 1497, the Tribunal ruled as follows:
“We have considered the argument and submissions of learned counsel on both sides. It is our view that at this stage of the proceedings, it is needless to deter (sic) into the legal distinction between a sworn affidavit within the meaning of S. 107-119 of the Evidence Act and Statement on Oath as prescribed by the First Schedule to the Electoral Act. This is for the reason that at this stage, the Statement on Oath being challenged by the 2nd Respondent one of that profuse evidence tort (sic) to be adduced by the Petitioners at trial. As such until the deponents of the said statements on oath enter the witness box to adopt them it will be premature and pre-emptive to consider the validity in law of
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deposed to in the statement on oath.”
The Appellant showed their dissatisfaction to the ruling of the Tribunal when on the 8th of July 2015, filed a Notice of Appeal containing two grounds. The two grounds shorn of their particulars are as follows:-
a) The National and State Houses of Assembly Election Tribunal Holden at Calabar, erred in law when it struck out the Appellant’s motion to strike out the statements on oath filed by the 1st and 2nd Respondents herein in the lower tribunal in its ruling of 18th June, 2015.
b) The Lower Tribunal misapplied the provisions of paragraph 45 of the First Schedule of the Election Act to the settled facts of the case leading to the present appeal in its ruling of 18th June, 2015.
On the 6th of August, 2015, being the scheduled hearing date, E.O.E. Ekong leading O. A. Okon and l.M. Anana adopted Appellant’s brief as settled by him and urged the Court to allow the Appellant’s appeal in terms of the reliefs sought.
Mr. Essien Andrew also adopted the 1st and 2nd Respondents brief also settled by him and urged upon the Court to dismiss the appeal in its entirety as lacking in merit.
The 3rd and
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4th Respondents even though served with all the processes of this appeal, did not file any brief, and were not represented at the hearing.
From the two grounds of appeal filed, the Appellant raised a single issue for the court’s resolution:-
“whether having regard to the settled facts on record, the Lower Tribunal was right when it held in its ruling of the 18th June, 2015 that the Appellant’s motion to strike out the statements on oath filed by the 1st and 2nd Respondents was premature.”
For the 1st and 2nd Respondents, a single issue was likewise identified for resolution. It is:-
“whether the lower tribunal was right to strike out the Appellant’s motion of 16th June, 2015 as premature.”
It thus seems to me that the two issues are identical, and would therefore determine this appeal on the issue as formulated by the Appellant.
Moving his appeal on the sole issue, learned counsel submits that the lower tribunal was wrong when it decided to strike out the Appellants motion leading to the present appeal on the 18th of July, 2015. Counsel alluded to paragraphs of the motion canvassed at the tribunal and argued that the 1st and 2nd
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Respondents having elected not to challenge the depositions in the Appellant’s affidavits, the reasonable conclusion in the circumstances is that they have admitted the depositions as they relate to the various statements on oath filed by the petitioners along with the petition. counsel relied on the case of IFEYINWA OGOEJEOFO v DANIEL CHIEJINA OGOEEJEOFO (2006) FWLR (pt. 301 ) 1792 at 1803.
Counsel went further to state that the 1st and 2nd Respondents elected to oppose the Appellant’s motion on the grounds that:-
a) Section 115 of the Evidence Act 2011 does not apply to statements on oath and
b) That Appellant’s motion is premature. The statement on oath not having been adopted by the deponents.
He contends that the lower Court wrongly interpreted and applied the decision in ANPP V INEC (supra) contrary to the petition taken in that case. Analyzing the decision of ANPP v INEC (supra), counsel argued that it was rather the Court of Appeal which was rebuking the tribunal for striking out Respondents preliminary objection as being premature. It is the contention of the tribunal that all the materials necessary for the Court to examine and to
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draw the necessary inferences were before the lower tribunal and all it needed to do was to examine the statements on oath to see if they conformed with the stipulations of S. 115 of the Evidence Act 2011. It is his further contention that where the decision of the lower Court is allowed to stand, a miscarriage of justice will result as inadmissible evidence would influence the determination of the tribunal. He wants the Court to invoke the provisions of S.15 of the Court of Appeal Act 2004 (as amended) and to examine the 1st and 2nd respondents aforesaid statements on oath, so as to determine whether they meet the requirements of S.115 of the Evidence Act and to draw the correct inference.
On this counsel relies on the case of NJIDEKA EZEIGWE v GHIEF BENAON c. NWAWULU & ORS (2010)ALL FWLR (pt.518) page T94 at 828. He is of the view that all the conditions precedent for this Court to determine the Appellant’s motion to strike out the 1st and 2nd Respondents’ statements on oath are present, and having regard to the issues of law canvassed the ruling of the Court should be set aside.
The 1st and 2nd Respondents in its reply argue that the application
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at the lower tribunal was to strike out the statements on oath filed by the 1st and 2nd Respondents i.e. paragraphs 9, 10, 11,13, 14 and 15 of the statement on oath deposed to by Senator Bassey Otu and paragraphs 3 and 7 of the statement on oath deposed to by Friday James; and paragraphs 3 and 9 of the statement of Otei lvory Otei, all filed on the 17th April, 2015 in the substantive petition. He still argues that Appellant was objecting to the admissibility of some of the proposed evidence contained in the statement on oath of deponents who have not yet been called (and may not be called) as witnesses in the case.
In the instant, counsel posits, the tribunal held that Appellant’s objection was premature and should be properly raised at the trial when the evidence is sought to be tendered. He contended that a statement on oath does not become evidence in a case until it is adopted by the deponent, for it is only when it is adopted, a Court or tribunal can consider the admissibility and weight to attach to it. On this, counsel cited the case of FUNTUA V TIJANI (2011) 7 NWLR (Pt. 1245) 130 at 153 and INEC V A.C. (2009) ALL FWLR (Pt. 480) 732 at 790.
In
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further submission, counsel opines that the Preliminary Objection that was held not to be premature in ANPP V INEC (2010) ALL FWLR (Pt. 520) 1347 was on locus standi which is on issue of jurisdiction which can be raised at any time. In BUHARI V INEC (supra) cited by the Appellant counsel argue was for leave to file additional depositions; which the Court of Appeal refused as not made by necessary or competent witnesses. In the case at hand, counsel argues the objection pertains to the admissibility of evidence raised before the hearing of the case. In fact raised before the pre-hearing session.
His final position is that the appeal be dismissed as being without merit. He equally urged upon the court to refuse the Appellant’s prayer that this case be remitted for retrial by another panel as prayer was made in bad faith considering the Constitutional 180 days limit set to determine the petition.
Replying on points of law, Mr. Ekong, learned counsel for the Appellants referred to the case of BUHARI V INEC (supra) and urged the court to disregard the submissions of the 1st and 2nd Respondents in that regard.
On 1st and 2nd Respondents’ contention
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that some of the witnesses may not be called, counsel advised the Court to avoid speculation and to act on cold facts on record. He commends the case of ISRAEL ARUM V OKECHUKWU NWOBODO (2013) ALL FWLR (pt.688) 870 at 886, and urged the Court not to follow the decision is FUNTUA V TIJANI (supra) and INEC V A.C. (supra) as it is not binding, but to apply the position taken in BUHARI V INEC (supra). He forcefully argued that at no where is it provided that a statement on oath does not constitute evidence until??they are adopted by the deponent, as there is no such provision in the Evidence Act and the Electoral Act. He finally submitted that 1st and 2nd Respondents counsel’s submission that his prayer to remit the case for retrial before another panel is in bad faith lacks any factual or legal foundation.
I have therefore taken a sober and dispassionate appraisal of the arguments of learned counsel and the illuminating authorities cited. It is my humble but firm view that this appeal turns on a very narrow question. It is this, view the Appellant’s motion to strike out the statement made on oath by the 1st and 2nd Respondents and or his witnesses premature
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or not? The lower Court faced with this simple question stated that it was indeed premature. The point has been made by the 1st and 2nd Respondents that the motion under consideration which is on admissibility of evidence was raised before the hearing of the case, and in fact before the pre-hearing session. There being no reply on the issue by the Appellant in their reply on points of law, this was taken as having been conceded to. I have observed that the arguments expounded by the Appellants in the Appellant’s brief, left the material issue which is whether the lower trial’s holding to the effect that the objection was premature, but went on to argue the merit or otherwise of his motion earlier argued before the trial tribunal.
Now let me state clearly at the onset that Election petition matters are governed by rules of procedure strictly geared towards ensuring the speedy and efficient dispensation of justice. Unlike ordinary civil proceedings in certain circumstances, the slightest default in complying with a procedural step, which ordinarily or otherwise could be waived or cured could be fatal to an election petition. See MAGAJI V BALAT (2004) 8
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NWLR (Pt. 876) 449 at 478 BUHARI V YUSUF (2003) 14 NWLR (Pt. 841)446.
Coming nearer to the issue before us, paragraph 47(1) of the First Schedule to the Electoral Act 2010 (as amended) provides.
“47(1) No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with leave of tribunal or Court.”
It should be reiterated that the use of the word ‘shall’ presupposes compliance with the express provisions in point and which cannot be compromised or waived. See ILORI V UZOEGWU (2004) 19 WRN 93 at 105; BAMAYI V A-G. OF THE FEDERATION (2006) 6 NWLR (Pt. 66) 401. The consequence of paragraph 47(1) of the First Schedule therefore is that all motions ordinarily should be entertained at the pre-hearing session of the Tribunal. The only exception being in extreme Circumstances. See AYO ADESEUN & ANOR V CHIEF LUGMAN OYEBINI TLAKA & ORS. (2011) LPELR 4244 CA.
I think the purport of this paragraph has been extensively expounded upon in the case of the PDP V PROF. STEVE TORKUMA UGBE & ORS. (2011) LPELR 4838 CA per Onyemenem, JCA. The effect is that the paragraph is mandatory and not
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directory, where therefore a motion as the one in contention was brought before the commencement of the prehearing session and for which no leave of Court was asked for nor granted, the holding of the lower tribunal to the effect that the motion is premature cannot be faulted in that regard.
With reference to the case of ANPP V INEC (2009) LPELR 3787 and BUHARI V INEC (supra) cited and relied upon by the Appellant, it is no where shown that a motion on notice like the one considered by the lower Court can jump the legal queue and to question the depositions that come along with the petitions. I have no hesitation whatsoever siding with the lower tribunal to the conclusion that the said motion being one that is premature and cannot be entertained at the stage under contemplation; the Appeal is unmeritorious and ought to and is hereby dismissed in its entirety.
Costs of N100,000.00 is awarded to the 1st and 2nd Respondents.
MOHAMMED LAWAL GARBA, J.C.A.: I agree.
IGNATIUS IGWE AGUBE, J.C.A.: I agree.
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Appearances:
E. O. E. Ekong Esq. with O. A. Okon and l. M. AnanaFor Appellant(s)
Essien H. Andrew for 1st and 2nd Respondents
3rd and 4th Respondents – Not represented though served.
For Respondent(s)
>
Appearances
E. O. E. Ekong Esq. with O. A. Okon and l. M. AnanaFor Appellant
AND
Essien H. Andrew for 1st and 2nd Respondents
3rd and 4th Respondents – Not represented though served.For Respondent
